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Study and Report 

For 

AMERICAN FEDERATION 
■ OF LABOR 

Upon 

Judicial Control Over 

Legislatures as to Constitutional 

Questions 



BY JACKSON H. RALSTON 




ORDERED PREPARED AND PRINTED IN PAMPHLET FORM BY ST. PAUL 
CONVENTION OF THE A. F. OF L. 



1919 

The Law Reporter Printing Compant 
Washington, D. C. 



3 1=1 C 



3"K \ 54- 



Judicial Control Over Legislatures as to 
Constitutional Questions 



To the Executive Council of the American Federation of Labor: 

At the Thirty-eighth Annual Convention of the American Federa- 
tion of Labor, held at St. Paul, Minnesota, in the month of June, 1918, 
the following resolution was passed : 

"Whereas, The sole right to make or unmake laws is vested in legislative bodies 
or the direct vote of the people by the Constitution of the United States; and 

"Whereas, The preservation of this right is essential if we are to remain a self- 
governing people; and 

"Whereas, Courts of the United States without constitutional authority or legis<- 
lative sanction have assumed the power to invade the prerogatives of the legislative 
branch of the government by unmaking and rendering invalid laws enacted by the 
people or their legislative representatives, the exercise of this power setting aside on 
many occasions the desires and aspirations of the people as expressed through legisla- 
tion, even when such measures had the approval of the majority of the people, their 
legislative representatives, and the President of the United States; an action which 
would be impossible in any other democratically governed nation; therefore, be it 

"Resolved, That the Executive Council be and is hereby instructed to have a 
study made of the successive steps which have been taken by our Federal and Supreme 
Courts, through which, without constitutional authority, and in opposition to the action 
of the Constitutional Convention, they laid hold on power which they now exercise; 
that the results of such study be prepared in pamphlet form and distributed to the 
affiliated organizations and given such other form of publicity as may be deemed advis- 
able; and that legal counsel be consulted with so that an adequate measure may be 
prepared and introduced to Congress, which will prevent any invasion of the rights and 
prerogatives of the legislative branch of our government, by the judiciary." 

Pursuant to this resolution, and at your request, I have made as 
careful a study of the whole subject as the time at my command has per- 
mitted, and submit it, together with the conclusions to which I have arrived,, 
for your careful consideration. 

OPINIONS OF RECENT WRITERS AS TO PRESENT EXERCISE 
OF JUDICIAL POWERS 

Before entering into the discussion it seems appropriate to refer, in? 
some measure, to the importance of the matter as illustrated by expres- 
sions of opinions, not alone as embodied in the resolution above mentioned, 
but as given by other careful and generally disinterested students of politi- 
cal affairs. I shall therefore take the liberty now of citing some of the 
more important utterances indicative of dissatisfaction with the existing 
judicial system, whereby judges set at defiance the popular will, as indi- 
cated by legislative action, often straining constitutional language to meet 
the requirements of the political and economic views entertained by the 
bench. 



Chairman Frank P. Walsh and Commissioners Garretson, Lennon 
and O'Connell, of the Commission on Industrial Relations, recommended, 
in their portion of the report of the Commission, because of the existence 
of many evils, "that Congress immediately enact a statute, or, if deemed 
necessary, initiate a constitutional amendment, specifically prohibiting 
the court from declaring legislative acts unconstitutional." 

Dean William Trickett, in "American Law Review," Vol. 41, page 
650, writes as follows : 

"... The people will never be masters of their own house so long as a majority 
of nine gentlemen, pretending to have Marconigrams from the defunct men of 1787 and 
1788 concerning their meaning when they adopted this or that phrase of the Constitu- 
tion, arrogate to themselves the power to veto, and not merely refuse to aid in the en- 
forcement of statutes, but even launch prohibitions against the carrying out of these 
statutes by those who, unhindered by them, would legally execute them." 

Very pointedly, Prof. Edward S. Corwin (American Political Science 
Review, May, 1912), said: 

"The truth of the matter is that the modern concept of due process of law is not 
a legal concept at all; it comprises nothing more or less than a roving commission to 
judges to sink whatever legislative craft may appear to them to be, from the standpoint 
of vested interests, of a piratical tendency." 

Judge Wannamaker, of Ohio (Illinois State Bar Association, Year Book 
1912, pages 181-2), says: 

"No English court for more than two hundred years has held an act of Parliament 
unconstitutional. Such jurisdiction had not been exercised by any English court for 
seventy-five years prior to the formation of our Federal Constitution. The fathers 
never intended to confer such an extraordinary jurisdiction, then unknown. . . . 
It is an usurpation of judicial power. 

" The exercise of this unwarranted and usurped governmental power against the public 
interest, against the public health, safety and life, has done more than any other single 
thing to arouse the present popular hostile feeling towards our courts of last resort." 

Mr. Gilbert E. Roe in "Our Judicial Autocracy" takes positions simi- 
lar to those already outlined. 

EARLY HISTORY OF JUDICIAL CONTROL OF LEGISLATION 

It is not necessary, for the purpose of this study, to elaborate at great 
length the early history of the idea which finally culminated in the present 
condition of judicial control of legislation as to its constitutionality — this 
for the reason that rights and duties must be judged, if they be judged 
properly, from the standpoint of present-day experience and of standards 
of political right conduct here and now. The principle involved in this 
statement is much the same as in the natural sciences. In order to under- 
stand the basic principles upon which a steam engine is operated we do 
not need to know the details of the studies of Watts and Stephenson. 

In the present instance, however, as we deal with words and their 
application to human affairs, some attention must be given to the process 
by which they arrived at their present meaning if we are to read the future 
from the past. 



A study of data brought to light by modern writers indicates that in 
the early and Middle Ages ecclesiastical courts and authorities in many 
instances refused to follow dictates of Parliament deemed unrighteous or at 
least irreligious. Further it was recorded by Coke, three centuries ago, 
in favor of the King's Power of Pardon, notwithstanding a parliamentary 
act, that Parliament could not take from a man "that protection which 
the law of nature giveth unto him." In another case: "That in many 
cases the common law will control acts of Parliament, and sometimes 
adjudge them to be utterly void; for when an act of Parliament is against 
common right and reason, or repugnant or impossible to be performed, 
the common law will control it, and adjudge such act to be void." Coke, 
118 a. b. 

Notwithstanding this, we are told in Haines "American Doctrine of 
Judicial Supremacy" (page 33) that: 

" . . . Authorities seem to accord in the opinion that there is no specific case 
on record in which an English court of justice has openly taken upon itself to overrule 
or disregard the plain meaning of an act of Parliament. This view of Pollock is con- 
firmed by Holland, who states that 'these dicta, though approved by Lord Holt, in 
London v. Wood, appear never to have been followed in practice;' and by Holdsworth, 
who believes that although 'large thj&ories were based upon these scattered dicta by the 
lawyers and statesmen of the lat& sixteenth and seventeenth centuries,' no evidence 
is found 'in this period that the professional feeling of the common lawyers led the judges 
to attempt to limit the competence of statutes.' . . . The dicta of Coke in Bon- 
ham's case, . . . and founded upon very little medieval authority and though at 
all periods some statutes have been submitted to a restrictive interpretation there never 
has at any period been any serious attempt on the part of the lawyers to question the 
omnipotence of Parliament." 

It is true that some writers have argued at great length that the 
opinions of Coke on the general subject exercised a large influence over 
those who were engaged in the formation of the Constitutioniof jthe United 
States, that his views led to the precedents hereafter to be alluded to 
wherein colonial or early state courts declared legislative acts to be uncon- 
stitutional; but the evidence is scanty and, at least to the writer, very 
inconclusive. 

At the time of the formation of our own government, notwithstanding 
the declarations of Coke, the best known opinion in this country with 
regard to the power, or rather lack of power, of the judiciary over acts of 
Parliament was that of Blackstone, who, in his Commentaries (Vol. 1, 
page 91), stating the Tenth Rule for Construing Statutes, remarked: 

" . . . If Parliament will positively enact a thing to be done which is unreason- 
able, I know of no power in the ordinary force of the constitution that is vested with 
authority to control it; and the examples usually alleged in support of this sense of the 
rule do none of them prove that, where the main object of a statute is unreasonable, the 
judges are at liberty to reject it; for that were to set the judicial power above that of 
the legislature, which would be subversive of all government." 

Much is said by those interested in sustaining the present power of 
the court about the power exercised by the Privy Council of England on 
appeal to it to declare acts of colonial legislatures to be void, but little 



6 

light is to be had from decisions or precedents of this kind. It is estimated 
by some writers, with apparent propriety, that the Privy Council in these 
cases, as in many other like cases more recently taken to it from colonies, 
acts legislatively quite as much as judicially. Whether we grant or deny 
this, the relations between England and the colonies are and always have 
been so vastly different in every respect — so wide apart from the question 
we are considering — that such decisions afford only false analogies. 

With this brief introduction we may proceed succinctly to consider 
the few cases in which the general principle is involved, cases which ante- 
date the formation of our Federal Constitution. 

AMERICAN CONSTITUTIONAL CASES RELATING TO THE QUES- 
TION PRIOR TO THE FORMATION OF THE CONSTITUTION 

1778 — Josiah Philips — Virginia: 

While this is cited as a precedent for judicial review, it is the opinion 
of Professor Corwin (The Doctrine of Judicial Review, page 71) that "the 
claim is without any basis in fact." The reference to it is contained in 
"Tucker's Blackstone" wherein it is stated that "in May, 1778, an act 
passed in Va. to attaint one Josiah Philips, unless he should render himself 
to justice within a limited time. He was taken after the time expired and 
was brought before the general court to receive sentence of execution 
pursuant to the direction of an act. But the court refused to pass the 
sentence and he was put upon his trial according to the ordinary course of 
law." 

It has been a question whether he was executed under the attainder, 
but according to Jefferson's letter to William Wirt, August 15, 1815, it 
seems to have been thought that "the safest proceeding would be to indict 
him as a felon and a robber." The result was that he was found guilty 
and apparently executed. 

1780 — Holmes v. Walton — New Jersey: 

In this case the legislature had provided for a jury of six, but the court 
refused to carry out the provision on the ground that the Constitution 
was transgressed. The legislature appears afterward to have submitted 
to the decision of the court to the extent at least of changing this provision. 

1782 — Commonwealth v. Caton — Virginia : 

In this case, as a matter of dicta, two judges asserted the right of the 
court to resist the unconstitutional act of the legislature, and the third 
judge was doubtful. (Corwin's Doctrine of Judicial Review, page 73.) 

1784 — Rutgers v. Waddington — New York: 

This case, instead of being an authority for, was one against the power 



of judicial review, the judge saying (Coxe's Judicial Power and Uncon- 
stitutional Legislation, page 230) : 

"The supremacy of the legislature need not be called into question; if they think 
fit positively to enact a law, there is no power which can controul them. When the 
main object of such a law is clearly expressed, and the intention is manifest, the judges 
are not at liberty, altho' it appears to them to be unreasonable, to reject it; for this 
were to set the judicial above the legislative, which would be subversive of all govern- 
ment." [See Blckst one's Tenth Rule, already cited.] 

1784 — Symsbury — Connecticut : 

In this case the court determined that an act of the assembly intended 
to restrict and limit the extent of the jurisdiction of the town of Symsbury, 
could not legally operate to curtail the land granted to proprietors of the 
town without their consent. (Haines' "American Doctrine of Judicial 
Supremacy," page 88.) 

The legislature does not appear to have done anything further about 
the matter. The case may not be considered so much as a precedent in 
favor of the judicial power as a judicial interpretation of a legislative act. 

1786— Trevett v. Weeden— Rhode Island: 

An act of the assembly had directed the imposition of a penalty for 
refusing paper money at face value and provided for a summary convic- 
tion without a jury. The Supreme Court of Rhode Island held the law 
unconstitutional, in this respect going beyond any other case in that the 
matter of unconstitutionality declared was not the violation of any written 
document. It was held to consist in the denial of the common law trial 
by jury. The statute denied a jury, but directed trial according to the 
"law of the land." The court held that there could be no trial according 
to the "law of the land" except by jury. The case is not, therefore, strictly 
germane to the question under consideration. In a fashion it goes beyond, 
in holding that there can be a law of the land apparently of greater force 
even than legislative or constitutional laws. 

It may be considered that the court in this case regarded the statute 
as self-contradictory, and for this reason refused to carry it out. If so, 
again it is not a true precedent as to the subject under consideration. 

As a result of the giving of this decision the judges were called before 
the legislature to explain their conduct and, while not removed from office, 
were refused a reelection upon the expiration of their term. 

1787— Bayard v. Singleton — North Carolina: 

This case was brought and decided immediately before the sitting of 
the Constitutional Convention. A statute had been passed to protect 
all persons purchasing land sold by commissioners of forfeited estates, 
the court being required on motion to dismiss suits to recover them. 
Nevertheless the court refused to follow the statute, contending "that by 
the Constitution every citizen has undoubtedly a right to a decision of his 
property by trial by jury. For that if the legislature could take away this 



right, and require him to stand condemned in his property without a trial, 
it might with as much authority require his life to be taken away without 
a trial by jury, and that he should stand condemned to die without the 
formality of any trial at all." 

This decision was severely condemned by the then Governor of the 
state (Spaight), a member of the Federal Constitutional Convention, who 
wrote to James Iredell as follows : 

" . . . I do not pretend to vindicate the law, which has been the subject of 
'controversy ; it is immaterial what law they (the North Carolina judges) have declared 
void ; it is their usurpation of the authority to do it, that I complain of, as I do most 
positively deny that they have any such power; nor can they find anything in the Con- 
stitution, either directly or impliedly, that will support them, or give them any color 
of right to exercise that authority. Besides, it would have been absurd, and contrary 
to the practice of all the world, had the Constitution vested such powers in them, as 
they would have operated as an absolute negative on the proceedings of the legislature, 
which no judiciary ought ever to possess, and the state, instead of being governed by 
the representatives in General Assembly would be subject to the will of three individuals, 
who united in their own persons the legislative and judiciary powers, which no monarch 
in Europe enjoys, and which would be more despotic than the Roman Decemvirate, 
and equally insufferable. If they possessed the power what check or control would 
there be to their proceedings? Or who is there to take the same liberty with them that 
they have taken with the legislature, and declare their opinion to be erroneous? None 
that I know of. In consequence of which, whenever the judges should become corrupt, 
they might at pleasure set aside every law, however just or consistent with the Con- 
stitution, to answer their designs; and the persons and property of every individual 
-would be completely at their disposal. Many instances might be brought to show the 
^absurdity and impropriety of such a power being lodged with the judges." (Letter of 
Richard Dobbs Spaight to James Iredell, Philadelphia, August 12th, 1787.) 

The foregoing exhausts all known authentic precedents up to the time 
of the Constitutional Convention, although uncertain references to one 
or two other cases occur ; for instance, in Plumer's Life of William Plumer, 
page 59, is the following reference to a supposed case: 

"I entered my protest singly and alone against the bill for the recovery of small 
'debts in an expeditious way and manner, principally on the ground that it was uncon- 
stitutional. The court so pronounced it, and the succeeding legislature repealed the 
flaw." 

Another case is suggested on the authority of a letter from Cutting 
to Jefferson in 1778 in which (Doctrine of Judicial Review, Corwin, page 
74) occurs the following : 

"It is asserted that the Mass. court had recently declared an act of the legislature 
unconstitutional and that the legislature had in consequence repealed the act." 

A thorough search, however, failed to reveal any such case or act of 
repeal. (A. C. Goddell, 7 Harvard Law Review, 415, ffg.) This case was 
probably one in which the court had ruled the act of the legislature involved 
to be repugnant to the treaty of 1783 with Great Britain. The Massa- 
chusetts legislature had repealed all such acts April 20, 1787, by general 
description in conformity with the demand of Congress. 

From the foregoing, without useless elaboration, it will appear that 
before the time of the convening of the Constitutional Convention, while 



Lord Coke had undertaken earlier to make a somewhat different assertion, 
nevertheless the statement by Blackstone of the omnipotence of the 
English Parliament gives the law of England. It is true that the colonies 
had rebelled, denying the power of Parliament to levy taxes upon them 
without their consent. This denial, properly considered, was not a denial 
of the omnipotence of Parliament within the territorial limits over which 
its power extended, but rather the denial of its omnipotence in an unrepre- 
sented country, loosely bound to the motherland. The argument, there- 
fore, which suggests that the resolution was in any true sense a denial of the 
omnipotence of Parliament within its proper territorial limits, is not sound. 

Furthermore, at the time of the convening of the Convention, the 
question of the supremacy of the judiciary among the American states 
under a written constitution was by no means settled. As we have seen, 
the judiciary claimed a supremacy over the legislature in Rhode Island 
without a written constitution, and their claim was emphatically denied 
by the legislature, which refused to reelect judges so using their power. 
In Connecticut the question had arisen in such a manner as not to attract 
the attention of the legislature in any serious way, and not to affect the 
general public, and the decision of the court had passed, as it were, sub 
silencio. In New York, while the judiciary had sought to construe a case 
out of the legislative intent, nevertheless in express terms it had recognized 
the superior power of the legislature. In New Jersey, the highest court 
had refused to recognize the binding force of an innovation made by the 
legislature upon the right of trial by jury and the legislature had acquiesced 
by changing the statute. In Virginia there had been nothing other than 
dicta. In North Carolina the judges had undertaken to vindicate the Con- 
stitution as they construed it against the action of the legislature, and such 
course on their part had met with very severe condemnation. 

It is apparent, therefore, that differences of opinion existed, but it 
does not appear that any certain line of action had received the general 
consent of American citizens. With this condition of the public mind we 
pass to the next important subject for consideration. 



THE FEDERAL CONSTITUTIONAL CONVENTION 

The jurisdiction to be given the judges was the subject of considerable 
debate in this convention. It is an error to say, as has repeatedly been 
alleged, that the Convention refused three or four times to give the right 
to the judiciary to set aside the acts of Congress. A confusion arises 
from the fact that on several occasions the Convention did refuse to create, 
as was urged by Madison, a Council of Revision, to consist of the execu- 
tive and a convenient number of the judiciary, which would have a direct 
power of control and veto over acts of Congress, unless overruled by two- 
thirds of each branch. 

Those who voted to refuse this power might, with almost equal pro- 



10 

priety, have followed their course of action because (1) they believed that 
no body should be created having a power superior to that of Congress, 
or because (2) they believed that it would be much better to trust to the 
judiciary assuming such right when it should once be constituted. In 
point of fact, both of these diverse reasons appear to have led to the rejec- 
tion of the proposition. In any event, one very important fact is to be 
noted, and to the writer it is a conclusive fact so far as determining whether 
the Constitution, whatever might have been the secret intent of some of 
the framers, should or should not be construed as giving judicial control 
over the validity of legislative acts. The fact is the Constitution did give 
the executive a veto. It is to be assumed that the Convention was con- 
vinced this veto would be exercised in any case where the executive believed 
the Constitution was in danger of violation. We quote from Haines' 
"American Doctrine of Judicial Supremacy," page 144: 

"A motion to postpone the discussion of a Council of Revision and to consider 
the veto by the President was seconded by Mr. King who observed 'that the judges 
ought to be able to expound the law as it should come before them free from the bias of 
having participated in the formation.' On June 4 by a veto of eight states to two, it was 
decided to drop the plan of a Council of Revision, and to adopt the executive veto instead" 
[Italics ours.] 

Madison, upholding the proposition of a Council of Revision, claimed 
that "whether the object of the revisionary power was to restrain the legis- 
lature from encroaching on the other subordinate departments, or on the 
rights of the people at large, or from passing laws unwise in their principle, 
or incorrect in their form, the utility of annexing the wisdom and weight 
of the judiciary and the executive seemed incontestable." 

Gerry, however, thought that the executive standing alone "would be 
more impartial than when he could be covered by the sanction and seduced 
by the sophistry of the judges." 

The essential fact is that while the Constitutional Convention had 
every opportunity, had it so desired, of expressing itself in favor of the 
power of judicial review, it did not do so, but merely united the executive 
with Congress, as we may believe, in determining, among other things, 
the constitutionality of laws. 

While it is true that the major consideration with us must be what 
the c onvention actually did, rather than what the individual members 
hoped or believed would be the effect of their action, we may take a mo- 
ment to refer to the attitude of the several members upon the general 
subject. We do this more to indicate how unsafe it would be to trust our- 
selves to this method of constitutional interpretation than to show, under 
the circumstances explained, its importance. 

Professor Charles A. Beard, of Columbia University, has written a 
little work, "The Supreme Court and the Constitution," seeking to demon- 
strate that the very large majority of the members of the Constitutional 
Convention favored the judicial power of passing upon the constitution- 
ality of congressional acts. With great industry he has examined then- 
expressions of opinion in the Constitutional Convention, and in their 



11 

published writings, and has drawn inferences not always, as we may believe, 
sufficiently sustained by the facts, from the votes of such as were also 
members of the first Congress. Among those whom he classes as the 
twenty-five leaders, he would list seventeen as in favor of the proposition, 
with but eight opposing. His calculations are reviewed and criticised 
in many respects justly, as we are convinced, by Horace A. Davis in his 
work, "The Judicial Veto," with the conclusion on his part that out of 
forty-eight members who either signed the Constitution or took a fairly 
active part in its making there were eleven for and sixteen against judicial 
control. 

It fell to Gouverneur Morris to prepare the final draft of the Con- 
stitution, and years later, indicating at once the relative unimportance of 
the whole subject of the opinions of the signers, and also indicating the 
purpose for which the judiciary clause was prepared, he wrote as follows: 

"My Dear Sir: What can a history of the Constitution avail towards inter- 
preting its provisions? This must be done by comparing the plain import of the words 
with the general tenor and object of the instrument. That instrument was written by 
the fingers which write this letter. Having rejected redundant and equivocal terms, 
I believe it to be as clear as our language would permit; excepting, nevertheless, a part 
of what relates to the judiciary. On that subject, conflicting opinions had been main- 
tained with so much professional astuteness, that it became necessary to select phrases 
which, expressing my own notions, would not alarm others nor shock their self-love; 
and to the best of my recollection, this was the only part that passed without cavil." 

As Mr. Davis says (page 69), it would be difficult to understand 
Morris' allusion to "conflicting opinions" — 

"If on the important subject of judicial review of legislation the members had been 
practically unanimous — twenty-five (including all the active ones who expressed them- 
selves) against five (according to Professor Beard's final list — or three, if we exclude 
Butler and Langdon) ; but with such an even split in opinion as is indicated by my list, 
it is easy to understand that tact and skill in selecting phrases became indispensable. 

"Is it not the legitimate inference that the power of judicial control was neither 
overlooked nor attempted to be slipped in by indirect or ambiguous phrases, but that 
it was intentionally omitted?" 

We may also justly believe that the omission was intentional, because 
the members of the Convention well understood that if it had been ex- 
pressly adopted, the difficulty of securing ratification by the states, in view 
of the differences of opinion which we have already explained, would have 
been infinitely multiplied. 

It is true that Hamilton and Madison in the "Federalist" claimed the 
right in the Supreme Court to review, and, in effect, to nullify an act of 
Congress; but under the judiciary act adopted by the first Congress under 
the Constitution, the power of review was granted to the Supreme Court 
only under limited circumstances as on appeal from a state court in the 
cases set forth in the extracts from the Judiciary Act of 1790 following the 
extracts from the Constitution of the United States under the next heading. 

That no part of the judiciary act gave the Supreme Court jurisdic- 
tion to set aside acts of Congress is made plain by Davis' "The Judicial 
Veto," and it is not necessary for our purposes to spend time upon the 
argument. 



12 

CONSTITUTIONAL PROVISIONS BEARING UPON JUDICIAL 
POWER AND ACTION THEREUNDER OF FIRST CONGRESS 

The important constitutional provisions to be borne in mind in con- 
nection with the discussion which must now follow are : 

ARTICLE III. 

Section 1. The judicial power of the United States shall be vested in one Su- 
preme Court, and in such inferior courts as the Congress may from time to time ordain 
and establish. The judges, both of the supreme and inferior courts, shall hold their 
offices during good behavior, and shall, at stated times, receive for their services a com- 
pensation, which shall not be diminished during their continuance in office. 

SBC. 2. The judicial power shall extend to all cases, in law and equity, arising 
under this Constitution, the laws of the United States, and treaties made, or which shall 
be made, under their authority; to all cases affecting ambassadors, other public minis- 
ters and consuls; to all cases of admiralty and maritime jurisdiction; to controversies 
to which the United States shall be a party; to controversies between two or more 
states; between a state and citizens of another state; between citizens of different states; 
between citizens of the same state claiming lands under grants of different states, and 
between a state, or the citizens thereof, and foreign states, citizens or subjects. 

In all cases affecting ambassadors, other public ministers and consuls, and those 
in which a state shall be a party, the Supreme Court shall have original jurisdiction. 
In all the other cases before mentioned, the Supreme Court shall have appellate juris- 
diction, both as to law and facts, with such exceptions and under such regulations as 
the Congress shall make. 

ARTICLE VI. 

This Constitution and the laws of the United States which shall be made in pur- 
suance thereof, and all treaties made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land; and the judges in every state shall 
be bound therebj^, anything in the Constitution or laws of any state to the contrary 
notwithstanding. 

ARTICLE XL— Amendment 

The judicial power of the United States shall not be construed to extend to any 
suit in law or equity, commenced or prosecuted against one of the United States by 
citizens of another state, or by citizens or subjects of any foreign state. 

We extract from the Judiciary Act enacted September 24, 17S9, as 
follows : 

Sec. 13. And be it further enacted, That the Supreme Court shall have exclusive 
jurisdiction of all controversies of a civil nature, where a state is a party, except between 
a state and its citizens; and except also between a state and citizens of other states, or 
aliens, in which latter case it shall have original but not exclusive jurisdiction. And 
shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, 
or other public ministers, or their domestics, or domestic servants, as a court of law can 
have or exercise consistently with the law of nations; and original, but not exclusive, 
jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a 
consul or vice-consul shall be a party. And the trial of issues in fact in the Supreme 
Court, in all actions at law against citizens of the United States, shall be by jury. The 
Supreme Court shall also have appellate jurisdiction from the circuit courts and courts 
of the several states, in the cases hereinafter specially provided for; and shall have 
power to issue writs of prohibition to the district courts, when proceeding as courts of 
admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the 
principles and usages of law, to any courts appointed, or persons holding office, under 
the authority of the United States. 



13 

Sec. 22. And be it further enacted, That final decrees and judgments in civil 
actions in a district court, where the matter in dispute exceeds the sum or value of fifty 
dollars, exclusive of costs, may be re-examined, and reversed or affirmed in a circuit 
court, holden in the same district, upon a writ of error, whereto shall be annexed and 
returned therewith at the day and place therein mentioned, an authenticated transcript 
of the record, an assignment of errors, and prayer for reversal, with a citation to the 
adverse party, signed by the judge of such district court, or a justice of the Supreme 
Court, the adverse party having at least twenty days' notice. And upon a like process, 
may final judgments and decrees in civil actions, and suits in equity in a circuit court, 
brought there by original process, or removed there from courts of the several states, 
or removed there by appeal from a district court where the matter in dispute exceeds 
the sum or value of two thousand dollars, exclusive of costs, be re-examined and reversed 
or affirmed in the Supreme Court, the citation being in such case signed by a judge of 
such circuit court, or justice of the Supreme Court, and the adverse party having at 
least thirty days' notice. 

Sec. 25. And be it further enacted, Thata final judgment or decree in any suit, in 
the highest court of law or equity of a state in which a decision in the suit could be had 
where is drawn in question the validity of a treaty or statute of, or an authority exer- 
cised under the United States, and the decision is against their validity; or where is 
drawn in question the validity of a statute of, or an authority exercised under any state, 
on the ground of their being repugnant to the Constitution, treaties or laws of the United 
States, and the decision is in favour of such their validity, or where is drawn in question 
the construction of any clause of the Constitution, or of a treaty, or statute of, or com- 
mission held under the United States, and the decision is against the title, right, privi- 
lege or exemption specially set up or claimed by either party, under such clause of the 
said Constitution, treaty, statute, or commission, may be re-examined and reversed or 
affirmed in the Supreme Court of the United States upon a writ of error, the citation 
being signed by the chief justice, or judge or chancellor of the court rendering or passing 
the judgment or decree complained of, or by a justice of the Supreme Court of the 
United States, in the same manner and under the same regulations, and the writ shall 
have the same effect, as if the judgment or decree complained of had been rendered or 
passed in a circuit court, and the proceeding upon the reversal shall also be the same, 
except that the Supreme Court, instead of remanding the cause for a final decison as 
before provided, may at their discretion, if the cause shall have been once remanded 
before, proceed to a final decision of the same, and award execution. But no other error 
shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than 
such as appears on the face of the record, and immediately respects the before mentioned 
questions of validity or construction of the said Constitution, treaties, statutes, com- 
missions, or authorities in dispute. 

Sec. 34. And be it further enacted, That the laws of the several states, except 
where the Constitution, treaties, or statutes of the United States shall otherwise require 
or provide, shall be regarded as rules of decision in trials at common law in the courts of 
the United States in cases where they apply. 

THE COURSE OF THE FEDERAL SUPREME COURT AND EARLY 

UNITED STATES CIRCUIT COURTS IN DECIDING ACTS 

OF CONGRESS UNCONSTITUTIONAL 

Courts of the United States had scarcely been organized before an 
application was made to the Supreme Court of the United States (Hey- 
burn's Case, 2 Dallas, 409) for the issuance of mandamus to be directed 
to the Supreme Court of Pennsylvania, commanding it to put Heyburn 
on the pension lists of the United States as an invalided pensioner under 
the Act of March 23, 1792. The Supreme Court never decided the ques- 
tion of its right to take jurisdiction or issue mandamus as prayed, unless 



14 

the case of Yale Todd referred to in a note to 13 Howard, page 52, be con- 
sidered a real authority, as to which quaere? (See Coxe's Judicial Power 
and Unconstitutional Legislation, 10-11.) But all of the Circuit Courts 
of the United States considered it, arriving at substantially like results. 
The circuit judges for the District of New York agreed "that by the Con- 
stitution of the United States the government thereof is divided into three 
distinct and separate branches, and that it is the duty of each to abstain 
from and to oppose encroachment on either. That neither the legislature 
nor the executive branches can constitutionally assign to the judicial any 
duties but such as are properly judicial and to be performed in a judicial 
manner." 

The Circuit Court for the District of Pennsylvania took a like posi- 
tion, in the first place, "because the business directed by this act is not of 
a judicial nature. It forms no part of the power vested by the Constitu- 
tion in the courts of the United States; the Circuit Court must, conse- 
quently, have proceeded without constitutional authority." 

The Circuit Court of North Carolina, including Judge Iredell, after- 
wards on the Supreme Court of the United States, was of a like opinion. 

The first unquestioned case before the Supreme Court, in which its 
power to declare invalid an act of Congress was sustained, was that of 
Marbury v. Madison, 1 Cranch, 137, decided in 1803, although a table of 
cases declared by Congress to be unconstitutional as contained in an 
appendix attached to Vol. 131 of United States Reports, based upon a 
note in 13 Howard, page 52, refers to United States v. Yale Todd, as de- 
cided in 1794. It is stated that by the doctrine of this (Yale Todd) case 
an act of Congress of March 23, 1792, was held to be unconstitutional as 
attempting to confer upon the court power which was not judicial. Its 
authenticity, however, has been shown to be doubtful. Certainly its 
authority must be so considered. (See Coxe's Judicial Power and Uncon- 
stitutional Legislation, pages 11-16.) 

One of the last acts of the administration of John Adams was to 
appoint Marbury as Justice of the Peace in the District of Columbia. 
The commission was not delivered, and Marbury brought original suit 
in the Supreme Court of the United States to enforce its delivery. This 
was made rather unnecessarily the occasion on the part of Chief Justice 
Marshall to declare the power to exist in the Supreme Court virtually to 
invalidate acts of Congress as unconstitutional. In the course of his 
opinion he held that: 

"The powers of the legislature are defined and limited; and that those powers 
may not be mistaken, or forgotten, the Constitution is written. . . . The distinc- 
tion between a government with limited and unlimited powers is abolished, if those 
limits do not confine the persons on whom they are imposed, and if acts prohibited and 
acts allowed are of equal obligation. It is a proposition too plain to be contested, that 
the Constitution controls any legislative act repugnant to it; or, that the legislature 
may alter the Constitution by an ordinary act. Between these alternatives there is no 
middle ground. The Constitution is either a superior paramount law, unchangeable 
by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, 
is alterable when the legislature shall please to alter it. • . . . Certainly all those 



15 

who have framed written constitutions contemplate them as forming the fundamental 
and paramount law of the nation and, consequently, the theory of every such government 
must be that an act of the legislature, repugnant to the Constitution, is void. 

"This theory is essentially attached to a written constitution, and is consequently 
to be considered by this court as one of the fundamental principles of our society. It 
is not, therefore, to be lost sight of in the further consideration of this subject. 

"If an act of the legislature, repugnant to the Constitution, is void, does it, not- 
withstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in 
other words, though it be not law, does it constitute a rule as operative as if it was a law? 
This would be to overthrow in fact what was established in theory, and would seem, at 
first view, an absurdity too gross to be insisted on. It shall, however, receive a more 
attentive consideration." 

Continuing in the argument of the subject, he said: 

"So, if a law be in opposition to the Constitution; if both the law and the Con- 
stitution apply to a particular case, so that the court must either decide that case con- 
formably to the law, disregarding the Constitution, or conformably to the Constitution, 
disregarding the law, the court must determine which of these conflicting rules governs 
the case. This is of the very essence of judicial duty." 

This whole argument ignores what must be believed to have been the 
real question involved in his propositions, which may be stated in this 
manner: If the Congress in the discharge of its duty under the Con- 
stitution has determined by passing an act that in its opinion a certain 
law is necessary, and if the executive in the discharge of his duty under 
the Constitution has signed and approved the act, or, over his veto, two- 
thirds of both houses, their attention being necessarily drawn to the act 
and all questions concerning it, interprets the Constitution favorably to 
the passage of the act, has then the judiciary a right to supervise, and, 
according to its own ideas, to affirm or reverse the action of two coordinate 
branches of the government, or, in the second event, of at least two-thirds 
of both houses of one coordinate branch? Or, stating the proposition in 
other terms, if we grant that there are three equal coordinate branches of 
the government, is not such concession fatal to the idea that one branch can 
destroy the work of the others on some theory of its own, relative to the 
subject of constitutionality? 

Despite the ingenious arguments to the contrary, it must be confessed 
that from the face of the Constitution as herein recited, no power can 
be presumed to exist in any one branch of the government to nullify the 
action of another acting within the scope of its authority under the Con- 
stitution. In opposition to this the argument is made that when Congress 
passes an unconstitutional act such act is in excess of its powers under the 
instrument creating it, and should not be enforced. But this is reasoning 
in a circle, because no power is given to any body other than Congress to 
determine the question of constitutionality, and the courts, as has been 
explained, can not do it without Congress ceasing to be coordinate and 
becoming a simple subordinate branch of the government. 

Chief Justice Marshall might well have declared in passing upon a 
congressional statute, that Congress and the President, having declared 



16 

it to be constitutional, the court had no power to take a different position 
without transgressing upon the functions of Congress and the Executive, as 
it would when in effect repealing, or at least declaring void, a law regularly- 
adopted. 

It is interesting to note that at one period in his history Chief Justice 
Marshall had advocated precisely this view of the matter. In Ware, 
Administrator, v. Hylton, 3 Dallas, 199, Marshall, the lawyer (page 211), 
said: 

"The legislative authority of any country can only be restrained by its own munici- 
pal constitution. This is a principle that springs from the very nature of society; and 
the judicial authority can have no right to question the validity of a law unless such a 
jurisdiction is expressly given by the constitution. It is not necessary to enquire how 
the judicial authority should act, if the legislature were evidently to violate any of the 
laws of God; but property is the creature of civil society, and subject, in all respects, to 
the disposition and control of civil institutions." 

As bearing upon principles enunciated in later decisions of the Su- 
preme Court the foregoing excerpt from his argument becomes interesting 
when it is argued that because an individual has not the power of extin- 
guishing his debts, the community to which he belongs, may not, upon 
principles of public policy, prevent his creditors from recovering them. 
It must be repeated that the law of property in its origin and operation 
is the offspring of the social state ; not the incident of a state of nature. 

Both as suggested and for other reasons which limitations of space 
prohibit enlarging, the case of Marbury v. Madison, the most discussed 
case probably ever considered by the Supreme Court, may be criticised. 
It is sufficient for the present to say that with all its imperfections on its 
head, if the doctrine of this case had never gone beyond the point at which 
it legitimately stopped, there would have been little, if any, ground of 
complaint on the part of any one. The real point of public moment 
decided in the case was simply that Congress had no power to enlarge 
jurisdiction in original cases, limited, as the judges conceived, by the 
Constitution. i 

Very plausible arguments could be made, consistent with the general 
view entertained in this opinion, in favor of Congress having no right under 
the Constitution of changing the bounds of jurisdiction which the courts 
might conceive to have been given them by the Constitution, and to justify 
them in resisting what they believed to be unconstitutional extensions by 
another branch of the government of the powers which they as a coordinate 
branch were bound to exercise. And the decision in Marbury v. Madison 
was in its essence a declaration that the court would not exercise an original 
jurisdiction which was not granted it by the Constitution. 

But the decision now under discussion went far and beyond the legal 
necessities of the case, and claimed for the judiciary the broadest possible 
power of determination under all circumstances whether an act of Congress 
i s or is not within the bounds fixed by the Constitution. 

The Theory of Public Agency 

Before leaving the consideration of the case of Marbury v. Madison, it 
may be as well as at any other time to discuss a theory much elabo- 



17 

rated by defenders of judicial control over legislative acts and which is set 
out among other places, quite fully in Bryce's American Commonwealth, 
chap. 23. 

In brief, it is argued that the several branches of the government legis- 
lative, executive and judicial, possess and are entitled to exercise only 
such powers as are given each of them by the Constitution. In the strictest 
sense they are agents of a superior — the people — who have only named 
them to exercise the people's various functions as a matter of political 
convenience. The position of these several branches is no stronger or 
better than would be the position of a board of directors of a private 
corporation which might be authorized to pass by-laws to a certain extent 
and whose ultra vires use of this limited power would immediately be 
declared void by any court before which the question should be brought 
in appropriate form. Thus runs the argument. 

Then, by a sort of logical legerdemain, the conclusion is instantly 
reached that the acts of a legislature in excess of constitutional powers are 
to be so declared and set at naught by the judiciary. This theory clears 
at a bound the difficulty that the courts have not been vested with this 
power in dealing with acts of coordinate branches of the government, 
although vested with judicial powers as between private individuals. 

But aside from this consideration, as is so often the case with sup- 
posed analogies differing in vital respects, the argument is based upon 
conditions which are not analogous. 

If the act of an agent is void as in excess of the powers granted him, 
an ordinary remedy therefor in civil cases is to be found in an action by the 
principal to set aside the thing done. In the matter we are discussing the 
principal is the people at large and no method has yet been devised by 
which the people at large may proceed in a court of justice to set aside the 
act of any one of their three classes of agents as being unconstitutional. 
In other words, if the President or the Congress indulge in an unconstitu- 
tional act the people are never heard judicially on the subject. The courts 
usually make the declaration of unconstitutionality in an action between 
private individuals in which the people, whose constitutional rights are 
alleged to have been violated, are not before the court either as movers or 
defendants. The analogy, therefore, fails in this vital respect. 

Again, it is not true that under all circumstances, even under existing 
rules of justice, the courts will examine into the question as to whether the 
limitations of power imposed by the principal have been violated by the 
agent. For instance, without authority, an agent to lease has sold a piano ; 
a third party has, without right, taken the piano from the purchaser to 
whom the agent could have conveyed no good title; the courts in an 
action of replevin will not at all consider the question whether the pur- 
chaser is the real owner or not. It will be sufficient for the court that he 
is in possession. 

Nor is it true that the Supreme Court of the United States has always 
followed the doctrines of the law of agency in dealing with the actions of 
coordinate branches of the government. It will suffice upon this proposi- 



18 

tion to refer to the case of Fletcher v. Peck, 5 Cranch. page 87, 3 Law Ed., 
page 162. The State of Georgia by a bill passed by its legislature, under- 
took to convey immense tracts of land in Mississippi, then under the 
control of Georgia, to a private individual who afterwards conveyed his 
interest in some of them to a party to the suit. The original g ant 
was the result of the grossest possible bribery of the Georgia legislature. 
In the case under discussion Chief Justice Marshall held that the courts 
were not at liberty to go behind the actions of a coordinate branch of the 
government and refused to invalidate the grant. The court, according to 
one of the judges, might readily have declined jurisdiction, for he said: 

"I have been very unwilling to proceed to the decision of this case at all. It 
appears to me to bear strong evidence, upon the face of it, of being a merely feigned case. 
It is our duty to decide on the rights, but not on the speculations of parties. My con- 
fidence, however, in the respectable gentlemen who have been engaged for the parties, 
has induced me to abandon my scruples in the belief that they would never consent to 
impose a mere feigned case upon this court." 

The effect of the decision in Fletcher v. Peck was to make secure titles 
which might thereafter be obtained through the corruption of legislatures, 
but with this phase of the discussion we are not concerned. It is sufficient 
for our purposes to say now so far as the reasoning based upon the powers 
of a mere agent is concerned, that if the legislature is a mere agent and if 
the judiciary has a right to set aside the act of such agent or any other 
agent than itself, because of lack of power to do the thing attempted to be 
performed, then it must have an equal power through the instrumentality 
of an equitable action to set aside as fraudulent the act of such agent when 
induced by corruption. It is not an extraordinary thing in pri\ ate prac- 
tice to have a deed set aside which has been executed by an agent for a 
principal because of his corrupt act. This the Supreme Court declined 
to do in the case of Fletcher v. Peck, although it said much of the incon- 
venience of reviewing the act of another branch of the government under 
such circumstances. Thus is repudiated the doctrine of breach of agency 
on the part of the law-making power as foundation for the courts' juris- 
diction over some legislative acts. It should not have assumed, never- 
theless, a kindred jurisdiction over other acts of legislative power. 

We can not forbear from referring to another respect in which the well- 
understood doctrine of agency as affording a foundation for the judicial 
control of legislative acts has been departed from; doing this on our part 
for the purpose of demonstrating further, if such demonstration were neces- 
sary, that the Supreme Court gets no power over the legislature on any 
theory of restricted powers conferred upon the several agencies of the 
government. 

A well-understood principle of the law of agency is that where a per- 
sonal trust has been imposed upon the agent, this trust to be exercised as 
the result of the judgment of the individuals in whom it is reposed, such 
trust may not be delegated to another in whom the constituent has not 
reposed his personal faith. With this premise we may say that the power 
of taxation, the power, in other words, of obtaining the very lifeblood of 



19 

government, is a power vested by the constitutions of the United States 
and of the several states in the legislative authorities for the time being. 
There is no right in them to surrender this control to any one else or to 
abdicate it, or, under the Constitution, to prevent recurrent legislatures 
from exercising such power as the occasion for its exercise may annually 
or biennially arise in the future. In other words, it is a personal trust in 
the legislature for the period of time covered by the jurisdiction of each 
elected body and is not a power which one legislature may exercise for a 
time in the future beyond the time of its fixed mandate under the Con- 
stitution. 

Nevertheless, acts of the legislature by which that body has undertaken 
to abandon for little or no consideration its power or the powers of its succes- 
sors, to levy constitutional taxes, have been sustained by the Supreme 
Court, and acts of subsequent legislatures attempting to resume the powers 
of which they have been deprived without their consent have been held 
void as impairing the obligation of contract. In other words, contracts 
entered into by the legislature without power to exempt a corporation 
from certain taxation, have been held as superior to the obligation of the 
legislature to confine its grants within the bounds of its own constitutional 
limitations. In this the courts follow the general doctrine of the Dart- 
mouth College case. 

Without elaborating any discussion as to the propriety of this course, 
we again remark that it illustrates another departure from the strict 
theory of agency so often urged in defense of the assumption of judicial 
power to declare legislative acts unconstitutional. 

It is interesting to note that although the case of Marbury v. Madison 
was decided in 1803, for forty-eight years thereafter the Supreme Court 
never ventured to declare unconstitutional a single act of Congress, and 
the next occasion for the exercise of this assumed power was in 1851 in the 
case of Ferreira (13 How., page 40). It was then determined that certain 
acts of Congress conferred upon the District Courts of the United States 
powers which were not judicial; that such acts were therefore void and 
that the Supreme Court of the United States would not assume appellate 
jurisdiction under them. 

It is manifest without our indulging in any extensive commentary, 
that this case falls within the exact lines to which the Supreme Court 
might well have limited itself in its language in Marbury v. Madison. In 
other words, it is to be treated merely as the declaration by the Supreme 
Court as to what constitutes its judicial power under the Constitution of 
the United States. 

It is true that during the forty-eight years which elapsed between the 
two decisions many acts of state legislatures had been declared uncon- 
stitutional, but the groundwork of these decisions was entirely different 
as we shall elsewhere undertake to show. 

From 185 1 we pass to 1857 to discover the next occasion for the declara- 
tion of the unconstitutionality of an act of Congress. We refer to the 
historic case of Dred Scott v. Sandford (19 How., 393). 



20 

Scott was a slave belonging to an army officer named Emerson; was 
taken from his home in Missouri, first to the free state of Illinois, and then 
into that portion of the national territory in which, by the eighth section 
of the Missouri Compromise of 1820, slavery had been forever prohibited. 
Master and slave remained there two years before returning to Missouri. 
In 1852 Scott sued his master for freedom in one of the lower state courts 
and won the action. On appeal the decision was reversed by the Supreme 
Court of the state upon the ground that appellee's status at home was 
fixed by state law regardless of what it had been abroad The case was 
remanded to the inferior court for retrial, but Scott having become the 
property of Sandford, a citizen of New York, decided to bring an entirely 
new action in the United States Circuit Court for the Missouri District 
and in so doing averred his citizenship in Missouri, which was traversed 
by a plea in abatement, denying the jurisdiction of the court upon the 
ground that the plaintiff was a descendant of African slaves and had been 
born in slavery. This plea was overruled and the court found the merits 
of the case for the defendant, and from this decision Scott appealed to the 
United States Supreme Court. After the final argument, as is learned from 
a letter of Justice Curtis, the court in its then view of the case did not 
believe it would be necessary to discuss the question of the constitutionality 
of the Missouri Compromise. Without reviewing the inner history of the 
whole decision, we may say that a different course was taken and the 
majority of the court decided the Missouri Compromise unconstitutional, 
Chief Justice Taney saying, among other things : 

"An act of Congress which deprives a citizen of the United States of his liberty 
or property, merely because he came himself or brought his property into a particular 
territory of the United States, and who had committed no offense against the laws, 
could hardly be dignified with the name of due process of law. . . . The powers over 
person and property of which we speak are not only not granted to Congress, but are 
in express terms denied. . . . And no word can be found in the Constitution which 
gives Congress a greater power over slave property, or which entitles property of that 
kind to less protection than property of any other description. The only power con- 
ferred is the power coupled with the duty of guarding and protecting the owner in his 
rights." t 

The effects of the Dred Scott decision are well known historically; 
so well known that we need not elaborate upon them. But we will not 
refrain, as affording just pretense for our present discussion, from quoting 
the words of President Lincoln in his first inaugural. He said: 

"I do not forget the position, assumed by some, that constitutional questions are 
to be decided by the Supreme Court; nor do I deny that such decisions must be binding 
in any case, upon the parties to a suit, as to the object to that suit, while they are also 
entitled to very high respect and consideration in all parallel cases by all other depart- 
ments of the government. And while it is obviously possible that such decision may 
be erroneous in any given case, still the evil effect following it, being limited to that 
particular case, with the chance that it may be overruled and never become a precedent 
for other cases, can better be borne than could the evils of a different practice. At the 
same time, the candid citizen must confess that if the policy of the government, upon 
vital questions affecting the whole people, is to be irrevocably fixed by decisions of the- 



21 

' Supreme Court, the instant they are made, in ordinary litigation between parties in 
personal actions, the people will have ceased to be their own rulers, having to that extent 
practically resigned their government into the hands of that eminent tribunal. Nor is 
there in this view any assault upon the court or the judges. It is a duty from which 
they may not shrink to decide cases properly brought before them, and it is no fault of 
theirs if others seek to turn their decisions to political purposes." 

Political Nature of Judicial Control Over Legislative Acts 

It will, perhaps, not be out of place in connection with this case, to 
call attention to the real nature of the power exercised by the Supreme 
Court in declaring acts of Congress unconstitutional ; that is to say, whether 
its decision is strictly judicial or is political in character. At the time of the 
announcement of the decision the judges doubtless wished the public to con- 
sider that they were indulging in a judicial act, but with the clearer vision 
of the present day it would scarcely be denied by any one that what they 
did was to undertake — in fact, some of their intimate discussions as we 
now know them show they intended — to settle the political issue. The 
hope was a vain one. Political issues are determined on their merits, as 
the people in the end believe them to be, and not by the dicta of judges 
whether obiter or not. The error, however, committed in the Dred Scott 
decision of undertaking through the courts to exercise a clearly political 
power, has been repeated in numerous instances by the Supreme Court 
of the United States and of the several states. 

It is true that the Supreme Court has several times stated, notwith- 
standing the assertion we have just made, that it will not interfere with 
the determination of a political question by the other departments of the 
government. (Luther v. Borden, 7 How., 1, 12 Law Ed., 581; Taylor v. 
Beckham, 178 U. S., 548, 44 Law Ed., 1187; Pacific States Telegraph & Tele- 
phone Company v. Oregon, 223 U. S., 118, 56 Law Ed., 377.) But it has 
never defined what it meant by the term "political question." Inasmuch 
as the cases as to which this declaration was made have concerned treaties, 
the recognition of foreign governments, and the determination of the ques- 
tion as to who were properly state officers, or what constituted a republican 
form of government, we may assume that the Supreme Court believed that 
the term was limited in its application to cases of these natures ; the more 
so as it has not hesitated to interpose in other questions of social and 
political importance. 

Whatever may have been in the minds of the judges, however, both 
the friends and the foes of judicial control over legislative acts have been 
quick to perceive that in exercising such control the Supreme Court was 
indulging in the exercise of political or legislative power. While the friends 
of this power have urged the necessity of some check upon the actions of 
the legislature, its enemies have had much to say with regard to the neces- 
sity of keeping the legislative power entirely separate and free from inter- 
ference by the judiciary. 

The earliest and one of the best foreign writers, touching upon the 
functions of the Supreme Courts in the United States, saw clearly that by 



22 

the exercise of the power to declare acts unconstitutional they were per- 
forming purely political acts. Let us quote the opinion of De Tocque- 
ville in chapter 6 of his "Democracy in America" : 

"The judicial organization of the United States is the institution which a stranger 
has the greatest difficulty in understanding. He hears the authority of a judge invoked 
in the political occurrences of every day, and he naturally concludes that in the United 
States the judges are important political functionaries; nevertheless, when he examines 
the nature of the tribunals, they offer nothing which is contrary to the usual habits and 
privileges of those bodies, and the magistrates seem to him to interfere in public affairs 
of chance, but by a chance which recurs every day. 

"When the Parliament of Paris remonstrated or refused to enregister an edict, 
or when it summoned a functionary accused of malversation to its bar, its political 
influence as a judicial body was clearly visible; but nothing of the kind is to be seen in 
the United States. The Americans have retained all the ordinary characteristics of 
judicial authority, and have carefully restricted its action to the ordinary circle of its 
functions. 

"His [an American judge's] position is therefore perfectly similar to that of the 
magistrate of other nations; and he is nevertheless invested with immense political 
power. If the sphere of his authority and his means of action are the same as those of 
other judges, it may be asked whence he derives a power which they do not possess. 
The cause of this difference lies in the simple fact that the Americans have acknowledged 
the right of the judges to found their decisions on the Constitution rather than on the 
laws. In other words, they have left them at liberty not to apply such laws as may 
appear to them to be unconstitutional. . . . 

"It is easy to perceive in what manner these differences must act upon the posi- 
tion and the rights of the judicial bodies in the three countries I have cited. If in France 
the tribunals were authorized to disobey the laws on the ground of their being opposed 
to the constitution, the supreme power would in fact be placed in their hands, since they 
alone would have the right of interpreting a constitution, the clauses of which can be 
modified by no authority. They would therefore take the place of the nation, and 
exercise as absolute a sway over society as the inherent weakness of judicial power 
would allow them to do." 

While De Tocqueville argues in favor, as far as the United States are 
concerned, of the exercise of this power by the courts, nevertheless the fact 
remains as shown, that the power is purely political and, therefore, not 
judicial. 

The central purpose of the work of Brooks Adams, "The Theory of 
Social Revolutions," is to show the political character of the work of the 
Supreme Court. As bearing upon this, the idea appearing in many ways 
in the course of his volume, we quote from page 104, referring to the case 
of Chicago, Milwaukee & St. Paul Railway v. Minnesota, 134 U. S., 461: 

"When the Supreme Court thus undertook to determine the reasonableness of 
legislation it assumed, under a somewhat thin disguise, the position of an upper chamber, 
which, though it could not originate, could absolutely veto most statutes touching the 
use or protection of property, for the administration of modern American society now 
hinges on this doctrine of judicial dispensation under the police power. Whether it be 
a regulation of rates and prices, of hours of labor, of height of buildings, of municipal 
distribution of charity, of flooding a cranberry bog, or of prescribing to sleeping-car 
porters duties regarding the lowering of upper berths — in questions great and small, 
the courts vote upon the reasonableness of the use of the police power, like any old- 
fashioned town meeting. There is no rule of law involved. There is only opinion or 
prejudice, or pecuniary interest. The judges admit frankly that this is so. They avow 
that they try to weigh public opinion as well as they can and then vote. In 1911 Mr. 
Justice Holmes first explained that the police power extended to all great public needs 
and then went on to observe that this police power, or extraordinary prerogative, might 
be put forth by legislatures 'in aid of what is sanctioned by usage, or held by . . . 
preponderant opinion to be . . . necessary to the public welfare.' " (Noble State 
Bank v. Haskell, 219 U. S., 104.) 



23 

A friend of the power of the courts, Mr. W. S. Carpenter, in writing 
"Judicial Tenure in the United States" and discussing the doctrine of 
judicial review as exercised by the court, says : 

"Nevertheless, it is precisely because of his possession of this latter function that 
the demand arises for the political responsibility of the judge. In this capacity the 
judge has come to exercise an important power of determining public policy, and, it is 
insisted, no official whose duties involve the determination of public policy should be 
free from popular control." (Italics ours.) 

Thus Professor W. F. Dodd, unfriendly to the power, in Michigan 
Law Review, Vol. X, page 85, writes: 

"As has been frequently suggested in recent years, the courts have become prac- 
tically legislative organs, with an absolute power of veto over statutory legislation which 
they may regard as inexpe lient; and this power has been used most frequently with 
respect to social and industrial legislation enacted to meet new social and economic 
conditions." 

In further confirmation of the fact of the exercise by the courts of a 
legislative and, therefore, political power, Professor Haines in "The Amer- 
ican Doctrine of Judicial Supremacy" (page 309), says: 

"The legislative activity of American courts which has resulted from this exten- 
sion of the right of review has now become a commonplace fact of our political thought." 

It is, therefore, both in an affirmative sense — that of legislating from 
the bench — and in a negative one — that of exercising a sort of veto power 
(in other words, destroying legislation already created by declaring it void) 
— that the Supreme Court exercises a political power. This will become 
still more apparent to us, particularly on the veto side, when we discover 
instances of its exercise in later cases. 

The conspicuous failure of the Supreme Court in attempting to deter- 
mine a political question in the case of Scott v. Sandford, and the storm 
of criticism following it led, apparently, to care in the exercise of the juris- 
diction claimed over legislative acts. In fact, until the Legal Tender cases, 
no further attempt was made to declare unconstitutional any act of Con- 
gress of general application. A striking circumstance is that from the 
organization of the Federal Courts in 1789 to 1888, covering the first one 
hundred years of the history of the court, but nineteen acts, to which 
properly should be added the Missouri Compromise, involved in the Scott 
case, making twenty in all, were declared unconstitutional. Upon this 
point the following table and remarks from Haines' "American Doctrine 
of Judicial Supremacy" (page 288) are pertinent: 

'■Acts of Congress Invalidated by Federal Courts from 1789 to 1888 {based on 
Table in U. S. Reports 131, Appendix) 

Relating to organization and procedure of courts 7 

Effort to exercise powers not granted in Constitution _ 6 

Interference with state powers ; 2 

Ex post facto. _ 1 

Interfering with rights of citizens 1 

Unjust penalties 1 

Denial of trial by jury 1 

19 



24 

"With the exception of the extraordinary decree issued in the Dred Scott case, 
which is not included in the above table, all of the acts or portions of the acts of Congress 
invalidated by the courts before 1868 related to the organization of courts. Denying 
the power of Congress to make notes legal tender seems to be the first departure from 
this rule." 

Before speaking, however, of the Legal Tender cases, two matters 
brought before the Supreme Court should receive attention, the first being 
that of Ex parte Milligan (4 Wallace, 2, 18 Law Ed., 281). This case is 
often referred to with high praise, and justly so, as a vindication of the civil 
power against the military in a jurisdiction where flagrant war is not exist- 
ing. It is much to the credit of the Supreme Court that five of its judges 
concurred in the prevailing opinion, but scarcely to be cited of commenda- 
tory value at this time, the passions of war having subsided, that there 
were four dissenting. The case is often referred to as if it involved an 
exercise of control by the courts over congressional legislation. This is 
a mistake. The prevailing opinion said: 

"This court has judicial knowledge that in Indiana the federal authority was 
always unopposed, and its courts always open to hear criminal accusations and redress 
grievances; and no usage of war could sanction a military trial there for any offense 
whatever of a citizen in civil life, in nowise connected with the military service. Con- 
gress could grant no such power; and to the honor of our national legislature be it said, 
it has never been provoked by the state of the country even to attempt its exercise. 
One of the plainest constitutional provisions was, therefore, infringed when Milligan 
was tried by a court not ordained and established by Congress, and not composed of 
judges appointed during good behavior." 

It is apparent from this statement that the majority did not under- 
stand that it was placing itself in opposition to the will of Congress, and 
that the action against which its mandate was leveled was an unauthorized 
exercise of military jurisdiction in a peaceful territory. As to the exercise 
of such power by the courts, leveled against excesses of executive authority, 
which excesses are unsupported by law, we have and can have no complaint 
to make. It is a part of the ordinary unquestioned judicial duty of the 
court. Nevertheless, the Milligan case has been treated by at least one 
Bar Association as if the determination of the court was a triumphant 
answer to those who oppose the judicial power of courts, to declare acts of 
Congress unconstitutional. 

As a matter of knowledge, important to the full consideration of the 
question under discussion, attention is called to the McCardle case. Mc- 
Cardle had been arrested by the military authorities in Mississippi and 
held for trial before a military commission; this immediately following 
the war. He applied for the writ of habeas corpus. His application fail- 
ing, he applied to the Supreme Court. A motion was made to dismiss 
his appeal, but this motion was denied. (6 Wal., 318.) 

The Supreme Court having thus evinced an intent to take jurisdic- 
tion of the case on appeal, Congress hastily passed an act taking away this 
particular branch of appellate jurisdiction from the Supreme Court. The 
court submitted to the action of Congress on the theory that its appellate 



25 

jurisdiction was constitutionally subject to "such exceptions and under 
such regulations as the Congress shall make," and refused to entertain 
further jurisdiction of the case, saying, among other things, that : 

"It is quite clear, therefore, that this court can not proceed to pronounce judgment 
in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less 
fitly performed by declining ungranted jurisdiction than in exercising firmly that which 
the Constitution and the laws confer." 

The question arose and was carried to the Supreme Court of the United 
States shortly after the war whether Congress had a right to make the 
currency authorized by it legal tender for debts. The Supreme Court on 
February 7, 1870, declared that prior to the enactment of the legal tender 
laws of 1862 and 1863, gold was the only legal tender, and all promises to 
pay in contracts prior to the passage of the acts were tacitly understood to 
be cancelled in gold. (Hepburn v. Griswold, 8 Wal., 605, 19 Law Ed., 518.) 

Shortly following the decision, two vacancies having occurred in the 
court, President Grant appointed judges more favorable to the Legal 
Tender Act. A rehearing was granted and in December, 1870, by a vote 
of 5 to 4, the law of Congress was sustained. 

The case is useful as indicating the vicissitudes to which a congres- 
sional act may be exposed in the Supreme Court, and the danger of leaving 
great public and political questions to the control of a judicial body which, 
for a great variety of such reasons as usually and honestly dominate men, 
may throw its power against the interests of the public and to the utter 
confusion of the affairs of government. 

In 1893 the Supreme Court decided the case of Monongahela Naviga- 
tion Company v. United States, 148 U. S., 312, 37 Law Ed., 463. The 
company under state authority had constructed a dam and locks on the 
Monongahela River and charged tolls for their use. In the interest of 
public commerce Congress had directed the purchase, or if need be, con- 
demnation of this property without payment for the franchise. The Su- 
preme Court held that such taking of the franchise was a taking of private 
property without compensation and the act in this respect unconstitutional. 
The Supreme Court, in so doing, followed the mischievous precedent of 
the Dartmouth College case, politically recognizing that when private 
individuals are permitted to exercise a public function the right of such 
exercise is in itself private property. 

In the later case of Alvarez v. United States, 216 U. S., 167, 54 Law 
Ed., 432, the Supreme Court declared invalid the claim that the right to 
exercise a public office was private property, and held that the provisions 
of the treaty with Spain protecting private property "have no reference 
to public or quasi public stations, the functions and duties of which it is 
the province of government to regulate or control for the welfare of the 
people, even where the incumbents of such stations are permitted, while 
in the discharge of their duties, to earn and receive emoluments or fees 
for services rendered by them." Why differences should be recognized 
between two acts, each of which involve the exercise of a public function, 
is not logically obvious, but the political mischief involved in acknowledg- 
ing a property right in individuals to control public commerce is infinite. 

One of the most important political opinions ever rendered by the 



26 

Supreme Court of the United States determined for nearly twenty years 
thereafter that, consistently with the provisions of the Constitution, Con- 
gress could not levy an income tax. This opinion was handed down 
despite the repeated experiences of the political benefits and advantages, 
not to say necessities, met by such a tax, which had been afforded for a 
period of more than one hundred years. 

In other words, the effect of the decision was to shear the government 
of a large part of its power of existence and perpetuity. Had it been made 
thirty years earlier it is probable that our civil conflict would scarcely have 
been brought to a successful termination. Had it been in force within the 
past three years the government could hardly have met its recent enormous 
demands. 

This case— Pollock v. Farmers Loan & Trust Co. (157 U. S., 429, 39 
Law Ed., 759) — was first decided by an equally divided court, leaving the 
opinion below in favor of the act to prevail. On the rehearing (158 U. S., 
601, 39 Law Ed., 1108) the court decided against the government, 5 to 4, 
with the effect that, in a suit to wliich the United States was not a party, 
and in which its representatives were heard only as matter of courtesy, 
the government was deprived of its great power of taxation upon incomes. 

That members of the ultimate majority declaring the act uncon- 
stitutional were largely influenced by their political or sociological views 
rather than by any legal conception, is made perfectly manifest from a 
review of the opinion of Justice Field, filed in connection with the first de- 
cision, he forming part of the court in both instances. Hesaid (157 U.S., 596) : 

"The income tax law under consideration is marked by discriminating features 
which affect the whole law. It discriminates between those who receive an income of 
$4,000 and those who do not. It thus vitiates, in my judgment, by this arbitrary dis- 
crimination, the whole legislation. . . . Whenever a distinction is made in the 
burdens a law imposes or in the benefits it confers on any citizens by reason of their birth, 
or wealth, or religion, it is class legislation, and leads inevitably to oppression and abuses, 
and to general unrest and disturbance in society." 

That there is a difference, for instance, between the levy of a 5 per 
cent tax on the income of a man receiving $4,000 a year and on that of 
another having an income scarcely large enough to furnish his family with 
the barest necessities of life, never occurred to the distinguished justice. 
That in the one case it might create only an inconvenience and in the other 
case might mark the distinction between sufficient and insufficient suste- 
nance, was unknown to him, and, this being unknown, in his economic 
ignorance he jumped to the conclusion that the act of Congress must have 
been unconstitutional. So far did he fail to perceive that a tax, theoreti- 
cally equal, might economically repres nt the extremes of inequality, and 
so tender was he, as a member of the Supreme Court, of the interests of 
those best able to take care of themselves, that when he came to close his 
opinion, he said: 

"If the provisions of the Constitution can be set aside by an act of Congress, where 
is the course of usurpation to end? The present assault upon capital is but the begin- 
ning. It will be but the steppingstone to others, larger and more sweeping, until our 
political contests will become a war of the poor against the rich ; a war constantly grow- 
ing in intensity and bitterness. 'If the court sanctions the power of discriminating 
taxation, and nullifies the uniformity mandate of the Constitution,' as said by one who 
has been all his life a student of our institutions, 'it will mark the hour when the sure 
decadence of our present government will commence.' " 



27 

Despite the terrifying prophecy so feelingly endorsed by the justice, 
an agitation began forthwith for a constitutional amendment which would 
unloose the bonds placed upon Congress by the decision of the Supreme 
Court and carry into effect what beyond all question had been the will of 
the people from the beginning, that is to say, just such an income tax law 
as had been so passionately declaimed against. The result was that after 
nearly twenty years of agitation the proposed constitutional amendment 
became a part of the fundamental law of the land and its binding character 
is recognized by our highest court. 

Again, as in the Dred Scott case, as in the first decision of the legal 
tender cases, the Supreme Court had notably failed through its action in 
constitutional questions to conserve the highest interests of government. 

Other Supreme Court Decisions of Constitutional Interest. 

Among the total of twenty cases in which the Supreme Court in the 
first hundred years of its history declared acts of Congress unconstitutional 
there are none others of sufficient interest for the present for us to refer to 
except in passing that of Callan v. Wilson (127 U. S., 540), wherein the 
Supreme Court declared unconstitutional an act of Congress failing to 
provide for a jury in the Police Court of the District of Columbia when 
important criminal cases were under trial. 

During the entire period beginning with the October term of the 
Supreme Court in 1889, and running down to the end of the October term 
of 1917, as will more fully appear by a table hereto attached (Appendix A), 
the Supreme Court declared only eighteen acts of Congress unconstitu- 
tional, in whole or in part, and but few of them were of such general impor- 
tance as to call for extended attention. The Pollock case has been mentioned. 

The next case was that of Wong Wing et at. v. U. S. (163 U. S., 228, 41 
Law Ed., 140), the syllabus stating that "Imprisonment of Chinese per- 
sons at hard labor under the Act of Congress of May 5, 1892, ordered by 
judgment of a Commissioner without trial by jury, is in violation of the 
constitutional provisions as to presentment or indictment of a grand jury 
in case of an infamous crime and as to due process of law." 

In Kirby v. United States, 174 U. S., 47, 43 Law Ed., 890, the Supreme 
Court declared that a provision of an act of Congress to the effect that 
judgment of conviction against the principal felon should be evidence in 
the prosecution against the receiver that the property of the United States 
alleged to have been embezzled, etc., had been so embezzled, etc., was in 
violation of the clause of the Constitution requiring that in criminal prose- 
cutions the accused shall be confronted with the witnesses against him. 

Several cases, differing in order of time, but associated in general 
character, may be grouped together. 

Fairbank v. United States (181 U. S., 283, 45 Law Ed., 862), simply 
invalidated the Federal Stamp Acts on foreign bills of lading ; United States 
v. Hvoslef (237 U. S., 1, 59 Law Ed., 813), invalidated Federal Stamp Acts 
on foreign charter parties; Thames & Mersey Marine Ins. Co. v. United 
States (237 U. S., 19, 59 Law Ed., 821), invalidated stamp taxes on policies 
of marine insurance. 

As a result of many years' agitation Congress, in 1906, passed the 



28 

Federal Employers' Liability Act, and the following year the question 
of its constitutionality was before the Supreme Court of the United States 
(Howard v. 111. Central R. R. Co., 207 U. S., 463; 52 Law Ed., 297). That 
court, by a division of five to four, declared the act in its more important 
phases, to be unconstitutional, the majority, however, reaching this 
result by different lines of reasoning. Justice White and Justice Day 
concurred to the principal opinion and Chief Justice Fuller and Justices 
Peckham and Brewer in the result. 

It would be beyond the purpose of this study to examine the views 
of the justices at any length. It may be pointed out, however, that the 
subject-matter of interstate commerce is one over which Congress had 
jurisdiction and, according to the rules stated by the Supreme Court, every 
intendment should have been indulged in to support the act. Had such a 
course been taken there would have been no difficulty in sustaining it. 

It is interesting to note that Justice Moody in his dissent to what he 
considered to be a judicial condemnation of an act of a great coordinate 
branch of the government, declared himself solicitous to maintain what 
seemed to him the lawful powers of Congress. He declared that : 

"The court has never exercised the mighty power of declaring the acts of a coordi- 
nate branch of the government void except when there is no possible and sensible con- 
struction of the act which is consistent with the fundamental organic law. The pre- 
sumption that other branches of the government will restrain themselves within the 
scope of their authority, and the respect which is due to them and their acts, admits of 
no other attitude from this court. This is more than a canon of interpretation; it is a 
rule of conduct resting upon considerations of public policy, and in the exercise of the 
delicate functions of condemning the acts of coordinate and equal branches of the 
government, under the same obligation to respect the Constitution as ourselves, has 
been observed from the beginning." 

Shortly after the announcement of this opinion Congress reenacted 
the law in such changed shape that the Supreme Court when next called 
upon to express an opinion on the general subject-matter sustained the act. 

In the interval between the two acts there were hundreds if not 
thousands of men killed or maimed, and they or their families left without 
remedy, through the doubtful exercise of what the Supreme Court has 
declared to be its power. 

We come now to the very important case of Adair v. U. S. (208 U. S., 
161, 52 Law Ed., 436). Congress, by act of June 1, 1898 (30 Stat, at 
L., 424), had made it a criminal offense against the United States for an 
officer or agent of an interstate carrier, having full authority in the premises 
from his principal, to discharge an employee from service of such carrier 
because of his membership in a labor organization. Adair, as the agent 
and employee of the Louisville & Nashville Railroad Company, was 
charged with having discharged, contrary to the statute, one O. P. Cop- 
page, because of his membership in the Order of Locomotive Firemen. 
The court held the act of Congress unconstitutional as being an invasion 
of personal liberty and of the right of property guaranteed by the Fifth 
Amendment of the Constitution, these rights embracing the right to make 
contracts for the purchase of the labor of others and equally the right 
to make contracts for the sale of one's own labor, each right, however, 
being subject to the fundamental condition that no contract, whatever 



29 

its subject-matter, can be sustained which the law, upon reasonable 
grounds, forbids as inconsistent with the public interests or as hurtful 
to the public order, or as detrimental to the common good. The majority 
of the court cited, with apparent approval, the case of Lochner v. New 
York (198 U. S., 45 ; 49 Law Ed., 937), of which more will be said hereafter, 
the purpose of this citation being to indicate that the question before the 
court was whether the act involved a fair, reasonable and appropriate 
exercise of the police power of the state, or whether it was an unreasonable, 
unnecessary and arbitrary interference with the right of the individual, 
and with his personal property, in preventing him from entering into such 
contracts in relation to labor as might, to him, seem appropriate or necessary. 
That the court in the decision of this case was acting in a political 
capacity, that is to say, legislating according to its own ideas of the 
functions of government, was made manifest by the following language 
used on page 174 of the decision: 

"It is not within the function of government — at least in the absence of contracts 
between the parties — to compel any person in the course of his business, against his will, 
to accept or retain the personal services of another, or to compel any person against his 
will to perform personal services for another." 

It was held within the legal right of the defendant to discharge 
Coppage because of his being a member of the labor organization as it was 
within Coppage's legal right to quit the service because the principal 
employed some persons who were not members of a labor organization. 

It was further suggested that there was no such connection between 
interstate commerce and membership in a labor organization as to authorize 
Congress to make it a crime against the United States for an agent of an 
interstate carrier to discharge an employee because of such membership. 

To this decision Justice McKenna emphatically dissented, finding 
from a consideration of the entire act that it presented "a well coordi- 
nated plan for the settlement of disputes between carriers and their em- 
ployees, by bringing the disputes to arbitration and accommodation, and 
thereby prevent strikes and the public disorder and derangement of 
business that may be consequent upon them." He submitted that no 
worthier purpose could engage legislative attention and argued that if 
labor associations are to be commended Congress should be able to 
recognize their existence. "Liberty," he remarked, "is an attractive 
theme, but the liberty which is exercised in sheer antipathy does not 
plead strongly for recognition." 

Justice Holmes, in the course of a special dissent filed by him, said : 

"I also think that the statute is constitutional, and, but for the decision of my 
brethren, I should have felt pretty clear about it. . . . The section simply prohibits 
the more* powerful party to exact certain undertakings, or to threaten dismissal or 
unjustly discriminate on certain grounds against those already employed. ... I 
confess that I think that the right to make contracts at will that has been derived from 
the word 'Liberty' in the amendments has been stretched to its extreme by the decisions; 
but they agree that sometimes the -right may be restrained. Where there is, or generally 
is believed to be, an important ground of public policy for restraint, the Constitution 
does not forbid it, whether this court agrees or disagrees with the policy pursued. It can not 
be doubted that to prevent strikes, and, so far as possible, to foster its scheme of arbitra- 
tion, might be deemed by Congress an important point of policy, and I think it impossible 
to say that Congress might not reasonably think that the provision in question would 
help a good deal to carry its policy along." 



30 

Departing, for the moment, from the plan of this study, which properly 
involves at this point a discussion alone of decisions of the Supreme Court 
declaring acts of Congress void, attention is called to the case of Coppage 
v. Kansas (234 U. S., 1; 59 Law Ed., 441). Kansas had made it a crime 
for an employer or his agent to prescribe as a condition under which one 
might secure employment under or remain in the services of such employer 
(the employment being terminable at will) that the employee should enter 
into an agreement not to become or remain a member of any labor organ- 
ization while so employed. The Supreme Court declared such act to 
be unconstitutional and void. The Kansas trial court had convicted the 
defendant, and the Supreme Court of Kansas had affirmed such conviction. 

It will be noted that there is a great similarity between this and the 
Adair case just examined. A majority of the Supreme Court considered 
that the statute interfered with the free right of the parties to contract 
and that it interfered with their equality of right and could not be sus- 
tained as a reasonable exercise of the police power of the state. 

It was admitted that the Supreme Court of Kansas had pointed out 
as a matter of common knowledge that "employees as a rule are not 
financially able to be as independent in making contracts for the sale 
of their labor as the employers in making contracts of purchase thereof," 
but this the majority thought was one of the inequalities of fortune 
which will be wherever the right of private property exists. The court said : 

"And, since it is self-evident that, unless all things are held in common, some per- 
sons must have more property than others, it is from the nature of things impossible 
to uphold freedom of contract and the right of private property without at the same 
time recognizing as legitimate those inequalities of fortune that are the necessary result 
of those rights." 

This reads as if, in the opinion of the court, the inequalities against 
which so many protest, depended upon freedom of contract as the Supreme 
Court interpreted it, and the right of private property. In the mind, 
therefore, of the court, it seems to result that it was more important to 
maintain extreme notions as to private property than to permit the 
legislatures to take any step the effect of which might be to do away 
with the effects of any inequalities of fortune. 

Whatever may be thought of the court's logic it is at any rate apparent 
that political considerations largely governed the tribunal in reaching its 
conclusions. 

It was urged in the brief of counsel for the state that membership 
in a labor organization was the ' 'personal and private affair of the employee. ' ' 
The majority of the Supreme Court said: 

"To this line of argument it is sufficient to say that it can not be judicially declared 
that membership in such an organization has no relation to a member's duty to his 
employer ; and therefore if freedom of contract is to be preserved, the employer must be 
left at liberty to decide for himself whether such membership by his employee is con- 
sistent with the satisfactory performance of the duties of the employment." 

The court thus in effect legislatively declared that membership in such 
an organization might have a relation to the employee's duty to the employer. 

It seems never to have occurred to the honorable court in the making 
of this decision to consider that the man who was discharged, one Hedges, 



31 

was at the time a member of the Switchmen's Union and entitled to all 
benefits, whether by way of insurance or otherwise, that pertain to such 
membership, and that the notice served upon him was that he should 
surrender his contract rights or be discharged. Nevertheless, the em- 
ployer alleged to be the person offended against, the supposed contract 
right merely to employ another was held infringed upon by the defendants 
in the later case of Hitchman Coal & Coke Co. v. Mitchell (245 U. S., 
229; 62 Law Kd., 1244). 

Justice Holmes dissented from the opinion in Coppage v. Kansas, 
and in the course of his dissent said: 

"Whether in the long run it is wise for the workingman to enact legislation of this 
sort is not my concern, but I am strongly of opinion that there is nothing in the Con- 
stitution of the United States to prevent it." 

Justice Day, who also dissented, said: 

"This statute, passed in the exercise of that particular authority called the police 
power, the limitations of which no court has yet undertaken precisely to define, has for 
its avowed purpose the protection of the exercise of a legal right, from preventing an 
employer from depriving the employee of it as a condition of obtaining employment. 
I see no reason why a state may not if it chooses protect this right as well as other legal 
rights." 

In the case of Loewe v. Lawlor (208 U. S., 274; 52 Law Ed., 488), the 
defendants were made liable for triple damages for doing no more — per- 
haps not so much, so far as its effect upon the livelihood of the plaintiffs 
was concerned — than was done by Coppage. But his act, interfering 
with the contract between Hedges and the Switchmen's Union could not 
be pronounced criminal by the state legislature and the legislature was 
held to have interfered with his civil rights, while the more innocent 
acts of the defendants in Loewe v. Lawlor were held subject to civil pro- 
cedure with heavy penalties under the decision of the Supreme Court. 

In the case of Muskrat v. United States, (219 U. S., 348; 55 Law 
Ed., 247), the act of Congress undertaking to refer to the court a ques- 
tion for determination which was not brought before it in a case or con- 
troversy, was held to confer a nonjudicial duty and therefore void. This 
was of course in line with some of the earlier holdings of the minor courts 
of the United States and found a particular precedent in the Ferreira 
case heretofore referred to. 

As of minor importance, several of the Supreme Court decisions 
nullifying acts of Congress, have been passed over, they being sufficiently 
noted in Appendix A. 

The last case within the scope of this review in which the Supreme 
Court of the United States has undertaken to declare void an act of Con- 
gress is Hammer v. Dagenhart (247 U. S., 251 ; 62 Law Ed., 1101). 

For years the public mind had been educated to the existence of 
abuses of child labor committed in the interests of great capital in the 
cotton mills of the country. It was felt that the future life of America 
was being destroyed to facilitate the production of dollars. The result 
was the passage of an act by Congress dated September 1, 1916, pro- 
hibiting transportation in interstate commerce of manufactured goods, 
the product of a factory in which during thirty days prior to the removal 



32 

of the goods children under 14 had been employed, or children between 
14 and 16 had been employed more than eight hours in a day or more than 
six days in a week, or between seven in the evening and six in the morning. 

A bill was filed in the District Court of the United States for the 
Western District of North Carolina by a father in his own behalf and 
as next friend (one would rather say enemy) of his minor sons, one under 
the age of 14 years and one between 14 and 16 years, employees in a Ncrth 
Carolina cotton mill, to enjoin the enforcement of this act. And this 
father, so anxious that his children should be permitted to work the hours 
of labor objectionable to the terms of the act, for the pitiful sum he might 
himself receive, appeared, as we find, in the Supreme Court by leading 
and expensive attorneys from New York City. 

The Supreme Court considered that to sustain this statute would 
not be "a recognition of the lawful exertion of congressional authority 
over interstate commerce, but would sanction an invasion by the Federal 
power of the control of a matter purely local in its character, and over 
which no authority has been delegated to Congress in conferring the 
power to regulate commerce among the states." 

The court which would sustain the Mann act concerning interstate 
transportation of immoral women found no evidence of congressional power 
to control the even graver immorality of injuries to childhood. 

Three judges dissented, Justices Brandeis, Holmes and Clarke. In 
the course of his dissent Justice Holmes argued that it was entirely within 
the power of Congress, as the statute undertook to do, to prohibit the 
carriage of certain goods in interstate or foreign commerce; and "it is 
not made any less constitutional because of the indirect effects that it 
may have, however obvious it may be that it will have those effects;" 
and that "we are not at liberty upon such ground to hold it void." 

Pertinently he remarked: "It is not for the court to pronounce when 
prohibition is necessary to regulation if it ever may be necessary — to 
say that it is permissible as against strong drink, but not as against the 
product of ruined lives." 

SUMMARY AS TO SUPREME COURT CASES DECLARING ACTS 
OF CONGRESS UNCONSTITUTIONAL 

There has been reviewed, with necessary brevity, the decisions of the 
Supreme Court of the United States declaring Federal statutes unconstitu- 
tional. Let us now take a moment to sum up these decisions. 

The preliminary question was whether the Supreme Court had the 
power in this respect which it has exercised. We have seen that his- 
torically this was doubtful. We have also found that the power has been 
actually exercised for 130 years without any emphatic dissent from 
Congress. We are therefore led to believe that whether rightfully or 
wrongfully exercised in the first instance, the power is now too deeply 
ingrained in our national institutions to permit its existence to be denied. 

The question remains whether the results of the exercise of this power 
have been such as to justify its existence; whether they have been good 
or bad, or consistently and certainly used, and in short, whether the 



33 

interests of the people would be subserved by allowing the Supreme Court 
to continue in the course it has chosen. In other words, judging the 
tree by its fruits, shall it be pruned or cuto ut by the roots? Reserving 
the answer to the latter question, let us examine the nature of the fruits. 

We have found that seven of the decisions of the Supreme Court 
rendered prior to 1889 had reference to the powers which Congress had 
undertaken to give or deny, in some shape or other, to the courts, thereby 
setting in some degree bounds either of extension or limitation, to their 
judicial activities. With decisions declaring void acts of Congress of 
this nature there can, from any standpoint, be little quarrel, as we have 
shown in the discussion of the Marbury case. When, however, we pass 
from these decisions, covering numerically so large a part of the activities 
of the Supreme Court with reference to Congress, we discover, with 
immaterial exceptions which will be noted, an almost uninterrupted series 
of failures, an almost invariable course of mischief, pursued by the Supreme 
Court in its interferences with congressional legislation. 

It will not be disputed at this day that the Supreme Court in the 
Dred Scott case embittered the relations between North and South and 
helped to precipitate the greatest catastrophe the country has ever known. 
This it did through the exercise of a power the political nature of which 
can not be disputed. 

As another notable and mischievous instance of interference in political 
matters under the guise of preventing impairment of contracts and pre- 
venting the taking away of property without due process of law, we have 
the first decision in the legal tender cases; a decision which coming at 
certain junctures, might well have paralyzed the government, at least 
temporarily; and which was of such nature as to justify the strong-arm 
procedure by which reversal was secured — the packing of the Supreme 
Court with new judges whose sentiments upon the validity of the law were 
well understood in advance. 

A dangerous decision sanctifying franchises granted by a state as 
private propertv, was that of Monongahela Navigation Co. v. U. S., 
148 U. S., 312, 37 Law Ed., 463, rendered in 1893. 

We next reach, as a notable* political performance, the income tax 
decision of 1895. We find that after wabbling, which would not have 
been creditable to the authorities of the humblest village in the land, 
the Supreme Court, five to four, declared an act of Congress touching 
intimately the revenues of the country to be ultra vires. As a result of 
of this decision, for nearly twenty years the poorest citizens of the country 
were compelled to meet the expenses of government in an unnecessary 
and exasperating proportion, and the great fortunes escaped payment pro- 
portionate to ability to pay or to the special privileges enjoyed by their 
possessors. The Supreme Court in this decision created a strong line of 
cleavage between the government and the people. The fact that after 
many years the people were able to correct the political errors of the 
court by changing their Constitution does not exten late the fact that until 
such change was made the less fortunate elements of our community were 



34 

relatively sufferers at the hands of the judiciary through the exercise of 
this assumed power. 

We have sufficiently reviewed the Adair case, the Wong Wing case, 
and the Howard case. While the Wong Wing case was decided in favor 
of individual rights, the same can scarcely be said of the other two. The 
result of the Adair case was to persuade many members of trade organi- 
zations that legislation presumed to be in their favor would not receive 
the degree of approval that was accorded by the Supreme Court to legis- 
lation construed as contra — vide the case of Loewe v. Lawlor. The effect 
of the Howard case, relating to the Federal Employers' Liability law, 
was to leave a constantly increasing body of sufferers from the dangers 
of industrial life without adequate relief for an appreciable period of time, 
or to defeat their claims altogether. 

As another notable step in this history, we come to the Hammer 
case involving a declaration by the Supreme Court of the limitation of 
power of Congress over interstate commerce, a limitation so complete 
that congressional legislation, attempted for the purpose, as may fairly be 
said, of ending the destruction of child life in the cotton mills, met with 
failure. Because of this action of the Supreme Court there is no doubt that 
hundreds of children have been sentenced to death and thousands will 
grow up enfeebled and inferior men and women. 

The language just used may seem strong, but it is weak in comparison 
with what was written by the English author, Mr. H. G. Wells, ten years 
ago in his work, "The Future of America." He said: 

"Just think of it! The richest, greatest country the world has ever seen, has 
over 1,700,000 children under fifteen years of age toiling in fields, factories, mines, 
and workshops. ... In the worst days of cotton-milling in England the condi- 
tions were hardly worse than those now existing in the south. Children, the tiniest 
and frailest, . . . rise in the morning and, like old men and women, go to the 
mills to do their day's labor; and when they return home 'wearily fling themselves 
on their beds, too tired to take off their clothes.' Many children work all night . . . 
'in the maddening racket of the machinery, in an atmosphere insanitary and clouded 
with humidity and dirt." 

Upon the other side of the question what have been the results, 
favorable to the community, achieved through the voiding by the Supreme 
Court of acts of Congress? (We have mentioned a line of decisions 
touching on jurisdiction of courts with which we have no quarrel.) 

The Supreme Court has decided that an oath (ex parte Garland, 4 
Wal., 333) to be administered to attorneys and counsellors in courts of 
the United States was ex post facto. It also declared (States v. DeWitt, 
9 Wal., 1 1) that an offense described in an act of Congress when committed 
within a state was beyond the power of control by Congress. 

It has said (Collector v. Day, 11 Wall., 113) that a tax upon the 
salary of a judicial officer of a state was unconstitutional; it has ruled 
(United States v. Klein, 13 Wal., 128) that a provision respecting pardons 
in an appropriation act was ex post facto, and that (United States v. 
Railroad Company, 17 Wall., 322) an act taxing interest paid by rail- 
roads on their bonds was unconstitutional in so far as affecting municipal 



35 

corporations. It has ruled (United States v. Reese, 92 U. S., 214) that 
certain provisions of an act enforcing the rights of citizens of the United 
States to vote were beyond the limits of the 15th Amendment to the 
Constitution, and in United States v. Fox (97 U. S., 670), a certain offense 
committed in bankruptcy was only the subject of state legislation. It 
has held that an act of Congress relating to trade-marks was void (Trade- 
mark cases, 100 U. S., 82) as not applying to commerce placed under 
congressional control; it has ruled that under a resolution of the House 
of Representatives (Kilbourn v. Thompson, 103 U. S., 168) certain inquiries 
indulged in by the House of Representatives related to judicial matters 
and implied no power to compel a witness to testify. It has decided 
(United States v. Harris, 106 U. S., 629) that a provision of the Revised 
Statutes relating to conspiracies to deprive persons of the equal pro- 
tection of the laws was too broad. It has held (Civil Rights cases, 109 
U. S., 3) that certain sections of an act protecting citizens in their civil 
and legal rights were not authorized — that such sections were not entitled 
to the interpretation given them. It has declared (Boyd v. United States 
116 U. S., 616) an act of Congress applying to suits for penalties or to 
establish a forfeiture was unconstitutional. It has said (Callan v. Wilson, 
127 U. S., 540) that in the District of Columbia in grave offenses a man 
was entitlted to a trial by jury, and the congressional act failing to provide 
it was unconstitutional. 

This brings the list down to 1889. Since that time, as we have here- 
tofore shown, the Supreme Court has not declared a single act of Congress 
unconstitutional which was of real practical importance, save those cases 
we have just particularly enumerated in which it has to the physical and 
material damage of large sections of the community or with actual danger 
to the operations of government, set up its judgment against that of 
Congress. 

When we consider carefully, therefore, the cases in which the Supreme 
Court has overruled Congress, we are brought to the conclusion that as 
a protection to the individual the jurisdiction has been almost a failure. 
As a political institution it has been frightfully dangerous. As a method 
of social review it has been destructive of human life. We may thus con- 
clude that no adequate reason exists for its continuance. 

We might regard the power we are discussing with more favor if 
the Supreme Court had been solicitous to maintain the rights of the 
individual as against the action of Congress, but such has not always 
been the case. 

In the case of Robertson v. Baldwin (165 U. S., 275; 41 Law Ed., 
715) a sailor was held in prison on a charge of breaking his contract of 
service, although he had left his ship when in an American port and 
because of conditions surrounding his employment. On the authority 
of maritime laws conceived in the darkness of the Middle Ages, the 
Supreme Court, with one member absent and one member (Justice Harlan) 
strongly dissenting, held that such a law of Congress did not create a 
holding to involuntary servitude. The law enacted by Congress, for the 



36 

most part dated from 1790, long before the adoption of the 13th Amend- 
ment, and its continuance in force and effect, so far as Congress was 
concerned, was largely to have been considered an inadvertence, but not 
so the action of the Supreme Court. With the quite common inertia of 
legislative bodies, nearly twenty years had to elapse, however, before 
the situation was corrected by Congress through a proper legislative 
interpretation of the 13th Amendment, and a seaman's act was passed 
abolishing the system which had been consecrated by the Supreme Court. 

Whatever one may think of the personal qualities of Moyer, Haywood 
and Pettibone, it is difficult to regard their forcible removal from Colorado 
to Idaho as anything but kidnapping, yet the Supreme Court, with but 
one dissent (Pettibone v. Nichols, 203 U. S., 192; 51 Law Ed., 148; Moyer 
v. Nichols, 203 U. S., 522; 51 Law Ed., 160) held that no constitutional 
right had been infringed by this executive action. 

It is just comment to say that in Toledo Newspaper Co. v. U. S., 247 
U. S., 402, 62 Law Ed., 1186, the court apparently considered preservation 
of the dignity of the judiciary more important than preservation of the 
right of free speech and sustained judgment in criminal contempt rendered 
by the judge offended against, a situation hardly to be reconciled with 
abstract justice. 

CONTROL BY THE SUPREME COURT OVER STATE LEGISLATION 

We must now discuss the branch of the jurisdiction of the Supreme 
Court which, from a constitutional point of view, is most frequently 
called into play. On rare occasions, as we have noticed, although often 
important ones, has the Supreme Court declared acts of Congress to be 
unconstitutional. The opposite is true with regard to the states. 

In this instance there is no reason for examining the early history 
of the power. We may content ourselves with saying that the Consti- 
tutional Convention discussed the control which ought to be exercised 
by the federal government over the laws of states, and deemed it inexpe- 
dient that Congress should exercise such power. There was therefore 
inserted in the Constitution the second paragraph of Article VI, reading 
as follows : 

"This Constitution, and the laws of the United States which shall be made in pur- 
suance thereof; and all treaties made, or which shall be made, under the authority of 
the United States, shall be the supreme law of the land; and the judges in every state 
shall be bound thereby, anything in the Constitution or laws of any state to the contrary 
notwithstanding.' ' 

The duty, therefore, of all judges in the execution of their duties, to 
be bound by the provisions of the Constitution, laws and treaties of the 
United States, and to measure the legislation of the states thereby, was 
made perfectly clear. 

We may digress, for a moment, if indeed it may be called a digression, 
to say that when the writers upon the American Constitution have expressed 
their admiration for the workings of the system of judicial control over 
legislative acts, they have really had in mind, not the exercise of this 



37 

power over acts of Congress, but its exercise by the Supreme Court over 
states. They have as a rule failed to differentiate between the two 
systems of control and have treated silently, almost, the fact that one 
was an inferred and the other an expressed power. The necessity for 
the existence of the power as far as state legislation is concerned, is very 
well stated in Bryce's American Commonwealth, chapter 23, as follows: 
"To have foreseen that the power of interpreting the Federal Constitution and 
statutes, and of determining whether or not state constitutions and statutes transgress 
Federal provisions, would be sufficient to prevent struggles between the National Gov- 
ernment and the state governments, required great insight and great faith in the sound- 
ness and power of a principle. While the Constitution was being framed the sugges- 
tion was made and for a time seemed likely to be adopted, that a veto on the acts of state 
legislatures should be conferred upon the Federal Congress. Discussion revealed the 
objections to such a plan. Its introduction would have offended the sentiment of the 
states, always jealous of their autonomy; its exercise would have provoked collisions 
with them. The disallowance of a state constitution would have seemed to be a politi- 
cal move to be resented by a political counter-move. And the veto would often have 
been pronounced before it could have been ascertained exactly how the state statute 
would work, sometimes, perhaps, pronounced in cases where the statute was neither 
pernicious in itself nor opposed to the Federal Constitution. But by the action of the 
courts the self-love of the states is not wounded, and the decision annulling their laws is 
nothing but a tribute to the superior authority of that supreme enactment to which 
they were themselves parties, and which they may themselves desire to see enforced 
against another state on some not remote occasion." 

We shall, in such brief review as it is possible now to make, endeavor 
to show that in the exercise of this power the Supreme Court has largely 
performed, from a national point of view, an absolutely essential duty; 
that without some provisions for its appropriate exercise, whether the 
power be political or not, the union would have been endangered from its 
very beginning; that this is demonstrated by the usual subjects of liti- 
gation coming up from the states to the Supreme Court, including more 
particularly those of interstate commerce and of purely personal rights 
under the 14th Amendment. We believe it will also appear that, however 
beneficial certain exercises of its power may be, nevertheless the Supreme 
Court directly within the past twenty or thirty years, has given such 
an extension to the interpretation of the 14th Amendment relative to 
due process of law, that it is forcing itself into an impasse from which it will 
find difficulty in withdrawing, and that in so doing it has departed from 
some of its early interpretations, much to the injury of the people and of 
its own high reputation. 

To review even an appreciable percentage of the entire number of 
cases in which the Supreme Court has declared acts of state legislatures 
to be unconstitutional would be beyond the scope of this work, but a 
few may be given passing reference. 

The first case of real importance of this description was that of 
Fletcher v. Peck (6 Cranch., 87), in which the Supreme Court declared 
that the legislature of Georgia had no power to set aside a private grant 
of land made by a preceding body, such conduct on its part impairing the 
obligation of a contract of the state. At the same time the Supreme Court 
itself refused, largely from motives of convenience and desire to avoid 



38 

a clash with another branch of the government, to declare the act of the 
first legislature void, because of bribery and fraud, considering that it 
had no power to enter into the motives influencing another branch of 
government. 

The argument against taking jurisdiction was of course strong, but 
the denial of the right of the legislature to review the fraudulent acts of 
its predecessors in any way, even at the expense of reimbursing innocent 
holders, consecrated the idea that successful fraud committed by those 
temporarily in the legislature was sanctified beyond attack legislatively 
or judicially. We have, however, discussed this case as far as necessary 
in another connection. 

The next case of large importance setting aside an action of the 
legislature as an interference with the contract of a preceding body was 
that of Dartmouth College v. Woodward (4 Wheaton, 518,) in 1819. This 
case is too well known and has been too much discussed for large con- 
sideration here. In brief, it enforces the doctrine that a legislative act 
conferring powers, once acted upon, is beyond the reach of a subsequent 
body. Some of the objections to the force of this decision have been re- 
moved by state constitutions and reservations in special acts of the legis- 
lature, but to this day it returns to be cited to limit and control the 
action of the taxing powers of the several states. Hereinbefore it has been 
pointed out that through its authority one legislature has been permitted 
to bind up the action of subsequent like bodies for the benefit of private 
individuals through all eternity, and, coupled with the doctrine of Fletcher 
v. Peck, the people have been without remedy against many politically 
evil conditions. 

We may turn with pleasure for a moment to refer to the case of 
Gibbons v. Ogden (9 Wheaton, 1) decided in 1824. By virtue of this 
case acts of the New York legislature conferring upon Livingston and 
Fulton monopolistic right to use vessels propelled by steam on the waters 
within the State of New York, were declared void as regulations of com- 
merce. This case laid the foundation for a long procession of decisions 
coming down to the present time, and by virtue of it and its successors, 
control over interstate and foreign commerce has been firmly held in the 
hands of the national government. But for it and following decisions our 
internal commerce might have been as thoroughly bound up through inter- 
ferences and restrictions and with oppressive and deadly monopolies as was 
the internal commerce of France prior to the Revolution. 

Passing over a long line of cases, generally of less fundamental 
importance than those of which we have spoken, we come to Munn v. 
Illinois (4 Otto, 113; 34 Law Ed., 77). 

The Illinois legislature had fixed by law the maximum of charges 
for the storage of grain in warehouses at Chicago, and the question arose 
as to whether this law was repugnant to that part of the Constitution 
which conferred upon Congress the power to regulate commerce with 
foreign nations and among the several states, or to the constitutional 



39 

proviso against preference in the regulation of commerce of the ports 
of one state over those of another, or to the 14th Amendment, in that it 
was claimed it deprived the defendant of property without due process 
of law. . 

After stating that every statute was presumed to be consitutional 
and ought not to be declared otherwise, unless clearly so, the court pro- 
ceeded to discuss the various lines of business which were so far coupled 
with public interests that property employed in them had ceased to be 
private property only. The court remarked that when — 
"'one devotes his property to a use in which the public has an interest, he, in effect,, 
grants to the public an interest in that use, and must submit to be controlled by the 
public for the common good." 

The court considered that it was — 
"difficult to see why if the common carrier, or the miller, or the ferryman, or the inn- 
keeper, or the wharfinger, or the baker, or the cartman, or the hackney-coachman, pur- 
sues a public employment and exercises 'a sort of public office' these plaintiffs in error 
do not. . . . The same principle applies to them that does to the proprietor of the 
hackney carriage, and as to him it has never been supposed that he was exempt from 
regulating statutes or ordinances because he had purchased his horses and carriage and 
established his business before the statute or the ordinance was adopted." 

The court then discusses the doctrine that the owner of property is 
entitled to a reasonable compensation for its use even though clothed 
with a public interest and that what is reasonable is a judicial and not a 
legislative question. The court remarked: 

"Undoubtedly, in mere private contracts, relating to matters in which the public 
has no interest, what is reasonable must be ascertained judicially. But this is because 
the legislature has no control over such a contract. So, too, in matters which do affect 
the public interest, and as to which legislative control may be exercised, if there are no 
statutory regulations upon the subject." 

Concluding its discussion as to the 14th Amendment to the effect 
that no state shall "deny to any person within its jurisdiction the equal 
protection of the law" the court said: 

"The power to regulate the business of warehouses depends upon the same prin- 
ciple as the power to regulate hackmen and draymen, and what can not be done in the 
one case in this particular, can not be done in the other." 

The court, therefore, with but two dissentients, confirmed the power 
of the state to determine through its legislature what could be reasonably 
charged for services rendered by a corporation in which the public was 
interested, and expressly denied the right of the judiciary to pass upon 
the question except where the controlling legislation or the circumstances 
of the case indicated that the public servant could charge a reasonable 
rate, lea\ ing this unfixed. 

The doctrine of Munn v. Illinois controlled the cases immediately 
following known as the Granger Cases in which the legislatures of Illinois, 
Wisconsin and Minnesota had undertaken to fix rates to be charged by 
railroad corporations operating within the several states. 

Had the doctrine laid down ia these cases been steadily adhered to, 
the court would have saved itself much labor and the people from many 
injustices, cases properly remediable through the legislature only. It was 



40 

not long, however, before the position then taken was receded from, and 
the Supreme Court entered a wide field of railway regulation, determining 
as against the legislature and its agencies what rates were reasonable and 
what unreasonable, and making the test to be the ability of the railroad 
or other corporation to obtain, under given rates, the return upon its 
capital regarded by the court as reasonable. 

In Chicago, Milwaukee & St. Paul v. Minnesota (134 U. S., 461; 
33 Law Ed., 970) the first backward step was taken, against the protest 
of three of the nine judges of the court. Justice Bradley in his dissent 
said, among other things, following the opinion in the Munn case: 

"But it is said that all charges should be reasonable, and that none but reasonable 
charges can be exacted; and it is urged that what is a reasonable charge is a judicial 
question. On the contrary, it is pre-eminently a legislative one, involving considera- 
tions of policy as well as of remuneration. . . . By the decision now made we de- 
clare, in effect, that the judiciary, and not the legislature, is the final arbiter in the regu- 
lation of fares and freights of railroads, ... an assumption of authority on the 
part of the judiciary, ... it has no right to make. The assertion of jurisdiction 
by this court makes it the duty of every court of general jurisdiction, state or federal, 
to entertain complaints against the decisions of the boards of commissioners appointed 
by the States to regulate their railroads; for all courts are bound by the Constitution of 
the United States, the same as we are." 

Many succeeding cases have confirmed, in the minds of the judges, 
the power of the Supreme Court of the United States to determine, despite 
the action of state legislatures, and finally despite the action of public 
service commissions, the question of the reasonableness of the rates 
fixed for the service of public service corporations. 

The powers over this subject which the courts have determined to 
exist in themselves are so tremenduous in their nature that it requires a 
man to be little of a prophet to say that by the very force of events within a 
comparatively short time the Supreme Court of the United States will 
be compelled, unless relief is secured otherwise, to find its way back to the 
doctrine of the Munn case. As matters now stand there is scarcely a 
public service corporation which, being subjected to regulations as to 
compensation or other regulations to which it may object as involving 
expenditures, may not appeal to the courts, and the points involved may 
usually be carried to the Supreme Court of the United States. By the 
effect, therefore, of its own decisions the Supreme Court of the United 
States may be called upon by thousands and tens of thousands of cor- 
porations scattered through every state, town, village and hamlet of the 
country to settle their differences with the public. All of this will be done 
under the claim that their property is being taken without due process of 
law. 

As illustrating the extent to which the movement of which we speak has 
already been carried, we read ("Judicial Tenure in the United States," 
Carpenter, page 201): "that between 1868 and 1911, six hundred and 
forty decision were handed down by the Supreme Court of the United 
States alone, interpreting the first section of the (14th) Amendment." 

At the present time, perhaps unconsciously to themselves, the judges 
of the Supreme Court are experiencing the necessity of putting brakes 



41 

upon their own action. The most casual examination of recent volumes 
of Supreme'Court Reports will indicate that the Supreme Court is refusing 
to interfere in about four cases out of five of those in which appeals are made 
to it against state laws and state taxation, and we may expect this propor- 
tion to increase startlingly if the court is not to be swamped and stifled 
by a monster of its own creation. 

We may perhaps hope that the court will ultimately reach the theory 
that "Due Process of Law" and "Equal Protection of the Laws" are 
matters to be settled by the state legislatures themselves and that state 
legislation is to be given such full faith and credit as we may now accord 
to the action of state judiciaries, at least in the absence of the violation 
of some direct and unmistakable provision of the Constitution. 

In its origin and development it may be that there will work out a 
rough resemblance between the courses of "due process of law" as viewed 
by the courts, and the "police power" theory. 

When the courts began to deny the right of the legislatures to pass 
acts indirectly taking private property, they spoke without limitation; 
but they soon found it necessary to create an exception to their own action 
and this they did by commencing to say that notwithstanding the theories 
of due process of law and the unconstitutionality of taking property 
without compensation, the legislatures possess certain police powers which 
would be recognized. Police powers, needless to say, were, so to speak, 
political powers. But the courts never defined them in any conclusive 
way, preserving always to themselves the right to determine, the incidents 
arising, what powers were police powers, and therefore permissible to be 
executed, notwithstanding the particular language of the Constitution, 
and what were not. 

The effect of this was to insure beyond question the control of the 
judiciary over government and to strengthen its political force. How- 
ever, the courts are steadily extending the bounds of the police power 
as exercisable by the legislature and as rapidly restricting their own powers. 
They may act likewise as to "due process of law." 

We have seen that the judiciary has assumed for itself the right 
to pass upon reasonableness of returns to private property charged with a 
public use. Nevertheless, the subject-matter meeting the approval 
of the court, private property has been treated as having no sanctity. 
Any business considered objectionable to the public may without question 
and without compensation be destroyed, as for instance the liquor busi- 
ness by prohibition, and the lottery business similarly. Should therefore 
the Supreme Court consider as an economic proposition that private 
property in land carries with it greater evils than the other institutions 
of which we speak, it would sustain an act doing away with such prop- 
erty as a police measure without considering private property as taken 
or the obligation of a contract violated. Those, therefore, who regard 
the Supreme Court as the great protector of private property, and there- 
fore favor the retention of judicial power over legislation, may find 
themselves ultimately in error. 



42 

Further discussing the control exercised by the Supreme Court over 
the police power of states, we refer to the case of Lochner v. The People 
(198 U. S., 45; 49 Law Ed., 937), in which the Supreme Court of the 
United States held that the limitation of employment in bakeries to 
60 hours a week and ten hours a day as provided by the New York law, 
was an arbitrary interference with freedom of contract not sustainable 
as a valid exercise of the police power. 

Although the legislature of New York had declared otherwise, the 
majority of the Supreme Court quietly said: 

"There is no reasonable ground for interfering with the liberty of person or the 
right of free contract, by determining the hours of labor in the occupation of a baker. 
. . . We think the limit of the police power has been reached and passed in this case. 
. . . If this statute is valid, and if, therefore, a proper case is made out in which to 
deny the right of an individual, sui juris, as employer or employee, to make contracts 
for the labor of the latter under the protection of the provisions of the Federal Constitu. 
tion, there would seem to be no length to which legislation of this nature might not go.' » 

The majority further considered statutes of this kind as "mere med- 
dlesome interferences with the rights of the individual," not to be passed 
"unless there be some fair ground, reasonable in and of itself, to say that 
there is material danger to the public health, or to the health of the em- 
ployees, if the hours of labor are not curtailed." (If this be not the assump- 
tion of political power on the part of the judiciary it would be difficult 
to find it a name.) 

The court was not satisfied with these expressions but proceeded to 
read a lecture to the legislature as to its motives, saying : 

"It is impossible for us to shut our eyes to the fact that many of the laws of this 
character, while passed under what is claimed to be the police power for the purpose of 
protecting the public health or welfare, are, in reality, passed from other motives." 

To this opinion and action of the court Mr. Justice Harlan, with whom 
concurred Justice White and Justice Day, interposed a strong and notable 
dissent, declaring among other things that: 

"Whether or not this be wise legislation it is not the province of the court to 
inquire. . . . 

"We are not to presume that the state of New York has acted in bad faith. . . . 

"I take leave to say that the New York statute, in the particulars here involved, 
can not be held to be in conflict with the 14th Amendment, without enlarging the scope 
of the amendment far beyond its original purpose, and without bringing under the 
supervision of this court matters which have been supposed to belong exclusively to the 
legislative departments of the several states when exerting their conceded power to 
guard the health and safety of their citizens by such regulations as they in their wisdom 
deem best." 

Mr. Justice Holmes also dissented, conceiving that — 
"A constitution is not intended to embody a particular economic theory, whether 
of paternalism and the organic relation of the citizens to the state or of laissezfaire." 

It is not to be conceived that today, with greater social and economic 
knowledge on the part of the Supreme Court, the act which fourteen years ago 
was held unconstitutional, would meet the same fate. In view of its deci- 
sions in the cases of Muller v. Oregon (208 U. S., 412; 52 Law Ed., 551)„ 



43 

relating to the hours of women's labor, and Wilson v. New (Adamson 
Law) (243 U. S., 332; 61 Law Ed., 755) we should expect that the former 
error of the Supreme Court would not be repeated. Nevertheless the in- 
stance serves to prove that control by the judiciary over questions which 
in their nature are social should not be unrestricted. 

It would be impossible within our limitations of space to discuss 
all or any considerable part of the decisions of the Supreme Court declar- 
ing state laws to be void. Some of them in fact we have already referred 
to in another connection, as, for instance, the Coppage case. We will, 
however, mention Adams v. Tanner (244 U. S., 590; 61 Law Ed., 1336). 
In this case the Supreme Court declared void a provision of the employ- 
ment agency law of the State of Washington making it criminal to demand 
or receive from any person seeking employment any remuneration for 
furnishing any information in relation thereto. One of the objects of the 
legislation was to get rid of fake employment agencies. The opinion of the 
court held that such an act was an improper exercise of the police power. 
Justice McKenna dissented from this view, and Justice Brandeis in another 
dissenting opinion, in which Justices Holmes and Clarke concurred, proved 
to a demonstration the necessity of the law and the jurisdiction of the 
legislature. In this case we may believe that the majority of the Supreme 
Court again failed to understand and to meet the problems arising from 
present industrial conditions precisely as they failed to meet them in the 
Lochner case, in the Adair and Coppage cases, and in the Hammer case. 

No reasonable dissent can be expressed by broad-minded men from 
the course of the Supreme Court in declaring void the peonage laws which 
have existed in certain states of the South or in protecting the Chinese 
and negroes from the effect or manner of enforcement of state or munici- 
pal laws or ordinances which have had the effect of depriving them of 
the personal rights which pertain to other residents within the juris- 
diction of the authorities enacting the laws. 

It is well that there should exist somewhere a power of review over the 
narrow-minded unconstitutional acts of minor localities which give way 
readily to prejudice. But the larger the unit, the less excuse for inter- 
ference. 

After this hasty review we may conclude that the exercise of a judicial 
power to declare state acts unconstitutional has been, largely dependent 
upon the subject-matter, both good and evil. We shall, however, find it 
exceedingly difficult to disentangle the jurisdiction which ought to be pre- 
served from the jurisdiction which the Supreme Court has undertaken to 
exercise to the prejudice oftentimes of the popular welfare. Some of the 
evils will, it must be believed, right themselves because of their very 
enormity, as for instance, those attaching to the interpretation and effect 
given to "Due Process of Law" and "Equal Protection of the Law." 
Others are more difficult. The treatment of this general subject-matter 
must be deferred. 



44 

STATE COURTS DECLARING LEGISLATIVE ACTS UNCONSTI- 
TUTIONAL UNDER FEDERAL AND STATE CONSTITUTIONS 
AFTER THE ESTABLISHMENT OF THE FEDERAL JUDICIAL 
SYSTEM 

We have heretofore discussed briefly the decisions of the state courts 
prior to the adoption of the Federal Constitution on the subject of their 
jurisdiction over the constitutionality of legislative acts. It remains to 
consider like action on the part of state courts succeeding this period and 
down approximately to the present time. In so doing we shall use profit- 
ably Haines' "American Doctrine of Judicial Supremacy" as to the early 
cases, referring also to other authorities. 

In 1789 the suit of Ham v. McClaws (1 Bay, p. 93) was decided in 
the Supreme Court of South Carolina. Slaves had been imported into 
the state contrary to the directions of an act of the legislature, but under 
the sanction of a former law, and without knowledge on the part of the 
importer of the new statute. The court "would not do the legislature who 
passed this act so much injustice as to . . . say that it was their 
intention to make a forfeiture of property brought in here as this was." 
The court, therefore, felt bound to give such a construction to the enacting 
clause as in its opinion was "consistent with justice, and the dictates 
of natural reason, though contrary to the strict letter of the law," and 
declared to be void statutes made against natural equity as also statutes 
made against Magna Charta. 

In 1792 the case of Bowman v. Middleton (1 Bay, p. 252) was decided 
by the same court, involving an act of assembly transferring a freehold 
from one party to another without judicial process, and without a trial 
by jury. The court held that the plaintiffs could claim no title under 
the act as it was against common right as well as against Magna Charta 
and that it was, therefore, ipso facto void. 

In 1788-89 the judges in Virginia were much concerned over an act 
of assembly establishing district courts and imposing new judicial duties 
without additional compensation. The matter appears to have dragged 
on without final settlement until the case next alluded to. 

In 1793 arose the case of Kamper v. Hawkins (1 Va. Cases, p. 23). 
An injunction to stay the proceedings of a judgment obtained under one 
of the acts of assembly reorganizing district courts brought before the 
court the issue whether such acts would be accepted and enforced. 

Judge Nelson believed the constitution comprised fundamental 
principles and rules of higher authority than legislative acts, and if the 
clause under consideration was unconstitutional it was void. Judge 
Roane inquired: 

"Would you have them (the judiciary) to shut their eyes against the law which is 
of the highest authority of any or against a part of that law, which, either by its words 
or by its spirit, denies to any but the people the power to change it? ... I conclude 
that the judiciary may and ought to adjudge a law unconstitutional and void, if it be 
plainly repugnant to the letter of the Constitution, or the fundamental principles: 
thereof." 



, 45 

Judge Henry believed that the proposition that parliamentary powers 
were omnipotent "in our constitution is limited and certain rights are 
reserved as before observed." Judge Tyler would not shrink from a com- 
parison of the law with the constitution and pronounce sentence as his 
mind might receive conviction. Judge Tucker believed that the judiciary 
was "bound to take notice of the constitution as the first law of the land; 
and that whatsoever is contradictory thereto is not the law of the land." 

Considering the fact that these judges seem to have confined them- 
selves to a respectful remonstrance to the assembly, in which remonstrance 
the position of the court was affirmed and reiterated, and the further fact 
that subsequently they resigned, afterwards requalifying under an amenda- 
tory law, important as the case may be, yet their expressions seem rather 
to be regarded as obiter than final. 

In 1796 arose the case in South Carolina of Lindsay v. Commissioners 
(2 Bay, p. 61) in which the Supreme Court of that state, in giving to the 
constitution an overruling operation over every act of the legislature 
inconsistent with it, thought that thereby the people obtained an inde- 
pendent security for their rights which rendered them perpetual, and 
that in so doing they were following the will of the people as therein 
declared. 

In 1801 arose the case of Stidger v. Rogers (2 Kentucky Decisions, 
p. 52). The constitution of Kentucky had provided that trial by jury 
was to remain inviolate and that all laws contrary to the constitution were 
void, and an act of assembly was declared to be in violation of this because 
it required a court to 'ascertain the value of property in a case which 
prior to the formation of the constitution could only have been ascer- 
tained by jury. The court treated the act as changing the obligation 
of the contract and void. 

In 1802 in the case of Whittington v. Polk (1 Harris and Johnson, p. 
242) Justice Chase treated an act of assembly of Maryland regarded as 
repugnant to the constitution as presenting the question as to whether 
it was made pursuant to the power vested in the general assembly by that 
instrument. 

In the case of Ogden v. Witherspoon (2 Haywood, p. 227) the legis- 
lature of North Carolina by an act passed in 1799 declared that a law 
passed in 1715 should continue in force and the question arose whether 
an act of 1789 had not repealed the act of 1715. The court held that the 
determination of this was a judicial and not a legislative one, and, having 
been made by a branch of the government not authorized by the consti- 
tution to make it, that it was void. 

In State v. Parkhurst (4 Halstead, p. 443), decided in New Jersey 
in 1804, a dissenting judge of the Supreme Court of the state, in an opinion 
which appeared to be sanctioned by the court of appeals upon a writ of 
error' held, in effect, that to say that a legislature by its acts could alter 
or amend a constitution was a perfect absurdity and made the creature 
greater than the creator and referred approvingly to the case of Holmes v. 
Walton, to which we have heretofore alluded. 



46 

In the case of White v. Kendrick decided in South Carolina in 1805 
(1 Brevard, p. 469) an act of assembly extending the jurisdiction of 
justices of the peace was adjudged unconstitutional. 

In 1805 in the case of University of North Carolina v. Foy (2 Haywood, 
p. 31) the North Carolina courts held void an act of the legislature of 
1800 repealing an act of 1789 which granted to the trustees of the uni- 
versity all the property that had theretofore or should thereafter escheat 
to the state. This decision carried the doctrine of judicial control to 
an extraordinary extent, allowing, as it did, one legislature to bind for 
an indefinite period in the future any action of succeeding legislatures relat- 
ing to a matter of public interest. It allowed the power of a mere public 
agency to carry on education to be beyond review or change by the public 
authorities even though no personal property interests were apparently 
involved. 

In Ohio in 1905 (Western Law Monthly, Vol. 5, June, 1863, p. 4) 
Judge Pease interpreted an act defining the duties of justices of the peace 
in cases exceeding $20.00 and preventing plaintiffs from recovering 
costs in actions commenced by original writ in the court of common pleas 
for sums between twenty and fifty dollars as invalid because repugnant 
to the constitution of the United States and of the State of Ohio. Waiv- 
ing the question as to whether the act referred to may have been repug- 
nant to the constitution of Ohio, it certainly was not repugnant to the 
Constitution of the United States, it having been repeatedly pointed out 
by the Supreme Court of the United States that the constitutional pro- 
vision under such circumstances regulating trial by jury applies only 
to suits brought in Federal courts. 

In 1807 the Supreme Court of Tennessee denied the power of the 
legislature to pass an act perfecting titles to land (1 Overton, p. 245) 
contrary to a compact between North Carolina and- Tennessee, and the 
act of Congress of 1806. 

The courts of Pennsylvania at first refused to invalidate acts although 
the judges in several cases indicated their approval of the doctrine of 
judicial control. (Austin v. Trustees of University of Pennsylvania, 1 
Yeates, p. 260.) 

In 1799 (2 Yeates, p. 501) the court stated that if the violation of 
the constitution should in any case be made by an act of the legislature, 
and such violation should unequivocally appear, it would be its duty not 
to shrink from the task of saying such law was void, but in this case the 
act of assembly was upheld. A similar situation arose and similar expressions 
were used in the case of Emerick v. Harris (1 Binney, p. 418) and a 
like declaration of opinion was made by the Chief Justice in Olmsted's 
case (Brightly's Report, p. 15). 

In 1811 judicial superiority was asserted and vigorously advocated 
in South Carolina (Bryne v. Stewart, 3 Des., p 475) but the act was not 
declared void. 

In Dupy v. Wickwire (1 Chipman, p. 237) a Vermont court declared 
an act to be clearly unconstitutional and void, the constitution of the 



47 

state prohibiting the legislature from the exercise of judicial powers. 
However, according to Carpenter's "Judicial Tenure in the United States" 
(p. 9): 

"The extent of the encroachments by the legislature was perhaps most widespread 
in Vermont. The judiciary was completely subordinated to the legislature, and the 
latter department made rules, granted new trials, and vacated and annulled judgments. 
The courts refused to review the constitutionality of legislative enactments, declaring 
that 'a mode of procedure pointed out by statute can not be turned from although 
in derogation of the common law. Such action by the courts would be to assume an 
arbitrary power not warranted by law.' " (Paine v. Ely, 1 Chipman's Reports, 37.) 

" 'No idea was entertained (in Vermont) that an act of legislature, however repug- 
nant to the Constitution, could be adjudged void and set aside by the judiciary, which 
was considered by all a subordinate department of government.' " (Chipman: Memoir 
of Thomas Chittenden, page 112.) 

In 1819 the courts of New York determined, upon the provisions 
of the Federal constitution, that statutes of the legislature affecting 
the rights of a patent covering both banks of the river Saranac impaired 
the obligation of contracts, and were, therefore, unconstitutional and 
void. (People v. Piatt, 17 Johns., p. 215.) 

Fostered by the precedents we have before recited, and particularly 
influenced by the position of the Supreme Court of the United States 
following the early period of the cases we have cited, the attempts on the 
part of the state courts to declare null and void acts of the legislature 
increased almost by leaps and bounds, the power only occasionally being 
questioned in the courts themselves. The most noteworthy criticism, 
perhaps, from the beginning, was contained in the dissenting opinion 
of Judge Gibson of Pennsylvania, in Kakin v, Raub (12 Sirgeant and 
Rawle, p. 330). In this case the Chief Justice had indicated his opinion 
that whenever a judge was convinced beyond doubt that an act had been 
passed in violation of the constitution he was bound to declare it void. 
His remarks impelled Judge Gibson to express his own ideas, and this he 
did to an extent toD great for more than a passing review. 

Justice Gibson denied that under a written constitution the judi:iary 
necessarily possessed other than its ordinary and appropriate powers, 
and said : 

"It will be conceded, then, that the ordinary and essential powers of the judiciary- 
do not extend to the annulling of an act of the legislature. Nor can the inference to be 
drawn from this be evaded by saying that in England the constitution, resting in prin- 
ciples consecrated by time, and not in an actual written compact, and being subject to 
alteration by the very act of the legislature, there is consequently no separate and dis- 
tinct criterion by which the question of constitutionality may be determined ; for it does 
not follow that because we have such a criterion, the application of it belongs to the 
judiciary." 

He concluded upon this point that : 

"Whatever may have been the cause of the limitation of its jurisdiction originally, 
it can exercise no power of supervision over the legislature, without producing a written 
authority for it in the Constitution, either in terms or by irresistible implication from the 
nature of the government, without which the power must be considered as reserved, 
along with the other ungranted portions of the sovereignty, for the immediate use of the 
people." . 



48 

Judge Gibson took the position, as will be held in this review, that a 
different rule prevailed with regard to state laws contrary to the Consti- 
tution of the United States, the Constitution and laws of the United States 
being the supreme law of the land, and the judges in every state bound 
thereby under the declaration of the constitution itself. He argued that 
the purpose of a written constitution was none other than to outline 
certain principles and confirm definite rights, thus brought to the parti- 
cular attention of the people. It rendered such principles familiar to the 
mass and tended to arouse public opinion, which was the only effectual 
safeguard against legislative usurpation. The constitution of Pennsyl- 
vania he found had withstood the shocks of strong party excitement for 
thirty years without a single case of the exercise of this right by the 
judiciary. 

As to the theory that an act unwarranted by the constitution was 
ipso facto void and must be entirely ignored by the courts, the justice 
thought it was an audacious claim to assert that the deliberate and well 
matured judgment of one of the regularly constituted departments of 
government expressed in the form of acts passed under a strict observance 
of the principles of the constitution should be rejected as ipso facto void. 
Why should not the judiciary give the same respect to the judgment and 
act of the legislature that the legislature gave to those of the judiciary? 
The oath of office taken by the judge to support the constitution he con- 
sidered related "only to the official conduct of the officer, and does not 
prove that he ought to stray from the path of his ordinary business to 
search for violations of duty in the business of others; nor does it, as sup- 
posed, define the powers of the officer." 

No consideration of policy he believed ought to influence the exercise 
of the right, which would not depend upon the clearness or obscurity of 
the case presented. 

Had it been intended that the judiciary should serve as a check, 
the matter would not have been left in doubt and the judges would not 
have been left to stand on the insecure ground of public opinion as to 
constructive powers; it would have been placed on the impregnable 
ground of an expressed grant, and they would not have been compelled 
to resort to the debates in the convention or to the opinion generally 
entertained at the time. Repugnance to the constitution he thought 
was ' ' not always self-evident, for questions involving the consideration of its 
existence required for their solution the most vigorous exertion of the 
higher faculties of the mind, and conflicts will be inevitable if any branch 
is to apply the constitution after its own fashion to the acts of all others. 
All that remained was to inquire whether the judiciary or the people 
were the tribunal of appeal." 

It has been urged often that there are three coordinate branches 
of the government, and it has been argued from this that the three branches 
are coequal. The latter argument did not meet Judge Gibson's approval. 
It was not easy, he said — 

"to comprehend how the power which gives law to all the rest, can be of no higher 
rank than the one which receives it. . . . Legislation is essentially an act of 



49 

sovereign power; but the execution of the laws by instruments that are governed by- 
prescribed rules, and exercise no power of volition, is essentially otherwise. The very 
definition of law, which is said to be 'a rule of civil conduct prescribed by the supreme 
power of the state,' shows the intrinsic superiority of the legislature. It may be said 
the power of the legislature also is limited, by prescribed rules. It is so. But it is, 
nevertheless, the power of the people, and sovereign as far as it extends. It can not be 
said that the judiciary is coordinate merely because it is established by the Constitution. 
. . . Inequality of rank arises not from the manner in which the organ has been con- 
stituted, but from its essence and the nature of its functions; and the legislative organ 
is superior to every other, inasmuch as the power to will and command is essentially 
superior to the power to act, and obey. It does not follow, then, that every organ 
created by special provision in the Constitution is of equal rank. Both the executive, 
strictly as such, and the judiciary are subordinate; and an act of superior power exer- 
cised by an inferior ought, one would think, to rest on something more solid than impli- 
cation." 

Finally it was the opinion of Judge Gibson that it remained — 

"with the people, in whom full and absolute sovereign power resides, to correct abuses 
in legislation, by instructing their representatives to repeal the obnoxious act. What 
is wanting to plenary power in the government is reserved by the people for their own 
immedicate use; and to redress an infringement of their rights in this respect would 
seem to be an accessory of the power thus reserved." 

Later in life (in 1845) when Justice Gibson had become the Chief 
Justice of his court, the foregoing opinion having been quoted, it is fair 
to say that he remarked that he had ' ' changed that opinion for two reasons. 
The late convention, by their silence, sanctioned the pretensions of the 
court to deal freely with the acts of the legislature ; and from experience 
of the necessity of the case." (Norris v. Clymer, 2 Penna. Reports, p. 281.) 

Age, with its attendant conservatism, and advancement in power, 
seem to have caused the judge to deny the force of his own argument — 
a condition of mind which was later paralleled by Herbert Spencer who, 
in his youth, in writing "Social Statics," demonstrated to perfection the 
foundations upon which " Progress and Poverty" was afterwards written 
by Henry George, and, when his surroundings were changed and bent 
of mind affected by age, so far repudiated the logic of his earlier writings 
that George was justified in his work "The Perplexed Philosopher." 

All the reasoning of Justice Gibson in Kakin v. Raub was "rendered 
more luminous, were it necessary, by later decisions of the Supreme Court 
of Pennsylvania. There has been no court, perhaps in the Union which 
has gone to greater lengths to obstruct social legislation on the ground 
of unconstitutionality than has this court. We may cite some instances. 
The Act of June 29, 1881, providing that wages should be paid only in 
lawful money and at regular intervals was declared to be unconstitutional 
as interfering with the freedom of contracts. Legislation forbidding 
employers to discharge workmen on account of their membership in 
labor organizations (Act of June 4, 1897) has been found unconstitutional. 
The Pennsylvania Act of May 20, 1891, requiring employers engaged 
in mining and manufacturing to pay workmen semi-monthly under penalty, 
was held to impair the obligation of contracts, to interfere with the right 
to acquire and possess property and to violate the provision of the state 



50 

constitution prohibiting passage of special laws regulating trade, mining 
or manufacturing. The Pennsylvania act of July 15, 1897, prohibiting 
the screening of coal before it had been weighed and credit given to the 
miner for the full amount mined by him was declared unconstitutional 
as depriving property owners and laborers of the right of making contracts 
concerning their respective interests, without advancing the general 
welfare or the public health. 

The act of 1891 compelling the appointment of a certified mine fore- 
man and imposing on the employer liability for his negligence was 
held unconstitutional as placing an improper burden upon the employer 
and because, according to the common law of Pennsylvania, he was a 
fellow servant of the miners who worked in the mine with him. (171 Pa. 193.) 

We may note that since this time the Supreme Court of the United 
States in Wilmington Star Mining Company v. Fulton, 205 U. S., 60, 
has declared the power of the state to abrogate the law as to fellow service, 
and in sustaining the present Federal Employers' Liability Act it has 
followed a like line of reasoning. 

The destructive appetite of state supreme courts for acts of the 
legislature has grown with what it fed upon. We find, according to 
Haines' American Doctrine of Judicial Supremacy, page 288, that from 
1776 to 1819 the highest courts of the states had declared but eighteen 
laws unconstitutional, as follows: 

Summary of Laws Invalidated by State Courts From 1776 to 1819 

1. Organization of courts and judicial procedure 6 

2. Denial of trial by jury 4 

3. Taking of private property 3 

4. Contrary to Constitution as fundamental law. 2 

5. Obligation of contract..— 1 

6. Bill of attainder. 1 

7. Lack of proper procedure in passage of act. 1 

18 

When the Supreme Court of Illinois is in active operation, it can do 
this much now in a year, and the extent to which the courts operate today 
is shown by Appendix B, from which it will appear that to 1916, 3,789 
statutes had been declared unconstitutional. 

Referring to the summary of the New York Library for the years 
1903-1908 (see Appendix C), it will be noted that a leading cause for declar- 
ing acts unconstitutional in states is the lack of clear title. This is 
largely what may be termed a mechanical defect, and is not an important 
heading, because errors of this kind may be corrected by the succeeding 
legislature. Some of the courts, however, have been unduly technical, 
although had we the time it might be shown that a proper exercise of 
this jurisdiction would more nearly lie within the just rights of courts 
than does any other heading, except, perhaps, that of determining what 
duties are strictly judicial, under which heading of the first table eight 
per cent of the total laws declared void fall according to table just referred 
to. It is interesting to note, as far as one can infer from the list, that 



51 

matters of strictly human right are rarely the subject of infringement 
by legislative power. According to the tables, courts spend a large share 
of their time determining against the legislature abstruse and doubtful 
questions of property. 

It would prolong this discussion to intolerable lengths to undertake 
to analyze the work of state courts in the manner even in which we have 
sought to treat decisions of the Supreme Court of the United States, 
but pari passu the same remarks are to be made with regard to them 
and like conclusions reached. The tendency of the state courts, once 
they have assumed the right to declare acts unconstitutional, to gather 
to themselves further powers of legislation by referring to tests resting 
in their inner consciousness and likely to vary with the predilections of 
the judge, has been shown in a number of cases, some being mentioned 
herein and many of which are cited in a footnote of an article by Professor 
Roscoe Pound to be found in Volume 24, Harvard Law Review, page 
609, which note is copied below. 

(Footnote.) — "In a recent judicial discussion of admission to the bar, the court, 
looking at the matter solely from the point of view of the individual applicant and dis- 
regarding all social interest in the matter said : 'There is a law higher in this country, 
and one better suited to the rights and liberties of the American people — that law which 
accords to every citizen the natural right to gain a livelihood by intelligence, honesty 
and industry in the arts, the sciences, the professions, or other vocations.' In re Leach, 
134 Ind., 665. Another court tells us that the right to take property by will is an abso- 
lute and inherent right, not depending upon legislation. Nunemacher v. State, 129 
Wis., 190, 198-203 (1907). Another court says that a right of privacy, the existence 
whereof many of our courts deny, 'is derived from natural law ;' that it 'has its founda- 
tion in the instincts of nature . . . consciousness being the witness that can be 
called to prove its existence.' Cobb, J., in Pavesich v. Life Ins. Co., 122 Ga., 190, 194 
(1905). Compare Jeffers v. State, 33 Ga., 367; Lanier v. Lanier, 5 Heisk. (Term.), 572; 
the notion that 'natural rights' as well as constitutional provisions limit the police power, 
Field, J., in Butchers Union Co. v. Crescent City Co., 11 1 U. S., 746, 762; also the notion 
of individual rights, apart from constitutional restrictions 'beyond control of the state,' 
Miller, J., in Loan Ass'n. v. Topeka, 20 Wall. (U. S.), 655, 662, and of property rights 
'going back of all constitutions,' Harlan, J., in Chicago, B. & O. R. Co. v. Chicago, 206 
U. S., 226, 237; the notion of a fundamental theory of legislation of intrinsic validity, 
to be read into constitutions, O'Brien, J., in People v. Coler, 166 N. Y., 1, 16 (1901) ; the 
notion of 'natural incapacities' (in the event always those recognized at common law) to 
which the legislature can not add new ones based merely on the facts of modern indus- 
trial conditions. State v. Loomis, 115 Mo., 307, 315 (1893); State v. Goodwill, 33 W. 
Va., 179 (1889); Frirer v. People, 141 111., 171, 186 (1892); the idea that the legislature 
can not determine that certain industries which employ laborers are dangerous, an- 
nounced recently by the New York Court of Appeals." 

The extent to which labor laws were declared unconstitutional up 
to the year 1910 is very well shown by Bulletin No. 91 of the Bureau 
of Labor prepared by Mr. Lindley D. Clark, and we are thus relieved from 
the necessity of reviewing the subject in detail. Perhaps as good an 
example of the method of declaring an act unconstitutional and preventing 
its recurrence, because in opposition to the then prevalent political point 
of view, as we can furnish was afforded by the Court of Appeals of Mary- 
land in the case of Wells v. Hyattsville, 77 Md., 125. We do not cite this 
because the Court of Appeals of Maryland has to a greater extent than 
others departed from canons of decision usually governing courts, but 



52 

because this particular case seems to illustrate to an unusual extent the 
errors committed by courts in declaring statutes unconstitutional. 

The Commissioners of Hyattsville, acting as they believed, under per- 
mission granted them by an Act of the Legislature in 1892, exempted from 
taxation the value of all improvements and personal property, and decided 
to obtain from land values all the revenues needed for town purposes. 
The assessment providing for this had scarcely gone into effect when a 
number of those who felt their interests bound up with the old system 
of attempting to tax everything, appealed to court by way of mandamus, 
asking that the Commissioners be required to put upon the assessment 
rolls the improvements and personal property the value of which had 
been omitted. They failed in the lower court, but succeeded so far 
as declaration of opinion upon constitutional and economic points was 
concerned, in the Court of Appeals. That court first held, as a matter 
of construction of the town charter and the amendments thereto, that 
the Commissioners had not the power to establish the exemptions they 
had created. Assuming that the case had to be decided at all on its 
merits, the court would not have been going beyond its duty thus far, 
but it was not satisfied The court next decided that under the terms 
of the Constitution all property had to be taxed even for municipal 
purposes, although it had never been supposed before in Maryland that 
the constitutional provision on the subject of taxation applied to munici- 
palities, and within about three years thereafter the court in another con- 
nection, stated substantially that the Constitution had no application to 
municipalities. (Hanna v. Young, 84 Md., 179.) Concluding, however, that 
municipalities were a part of the state government, and that all property 
should be taxed, the opinion continues: 

"As those who own buildings, improvements and personal property in any of its 
various forms — as well intangible as tangible — are equally protected in their posses- 
sions and in their natural rights by the state and local governments with those who own 
the land ; the support o f those governments should place no heavier charge upon the one 
than the other class of individuals. This has been the uniform and consistent principle 
always followed in Maryland. Eminently just in itself as a sound and long accepted 
axiom of political economy, it has been incorporated in her organic law since November 
the third, 1776; it has been upheld by her courts and steadily and tenaciously adhered 
to by her conservative people. But the act of 1892, not only under the construction 
placed upon it by the appellee, but palpably by reason of its exemption of all personal 
property, attempted to overthrow this salutary principle and to disregard the fifteenth 
Article of the Declaration of Rights, and to substitute an experimental, if not a visionary, 
scheme, which if suffered to obtain a foothold will inevitably lead to ruinous conse- 
quences. By making no provision for the assessment of personal property in the village 
of Hyattsville, and by confining the assessment to lands and improvements only, the 
Act of 1892 undertook to exempt all personal property from municipal taxation; and 
if the appellee's interpretation of the act be conceded to be correct, it in like manner 
authorized the exemption of buildings and improvements. Thus the whole cost of 
conducting the municipal government in all its departments was attempted to be thrown 
exclusively upon the land. If the legislature may lawfully do this in the particular 
instance of Hyattsville, it may do the same thing in the case of a larger and more popu- 
lous municipality, and likewise with reference to a county, and if as to one county, then, 
too, as to every county in the state. If the assessed valuations upon buildings and 



53 

improvements and upon personal property be stricken from the assessment books of 
the several counties, and the taxes be levied only upon the owners of the land, the burden 
would speedily become insufferable, and land would cease to be worth owning. Such 
a system would eventually destroy individual ownership in the soil, and under the guise 
of taxation would result in ultimate confiscation/' 

We thus learn from the court that uniform taxation upon all objects, 
irrespective of their nature and irrespective of the incidence of taxation 
is "eminently just in itself as a sound and long accepted axiom of poli- 
tical economy," John Stewart Mill and other equally distinguished writers 
to the contrary notwithstanding. We find that the town had "attempted 
to overthrow this salutary principle," despite the fact that today no per- 
son who is familiar with the subject of taxation can call taxation of 
everything either "salutary" or a "principle." We find that the court 
declared that the appellees had sought "to substitute an experimental, 
if not a visionary, scheme which, if suffered to obtain a foothold, would 
inevitably lead to ruinous consequences." The fact is that at the time 
the opinion was penned, certain towns in New Zealand practiced it, while 
since that time the system has spread throughout New Zealand, Australia, 
and Western Canada and to a large degree North Dakota and the cities 
of Pittsburgh and Scranton, and under an amended constitution several 
towns in Maryland. We note that since then the burden a system of this 
sort places upon the owners of land has not become "insufferable" if they 
use their land, but quite to the contrary, and that land only ceases "to be 
worth owning" when it is held out of use to the detriment of the community. 

After having indulged in these observations upon political considera- 
tions with which the court, as a court, had nothing whatever to do, the 
judges next decided that the action of mandamus was too late; that relief 
should have been sought by way of injunction and that the suit should 
be dismissed. 

In short, the court indulged in unnecessary, if not erroneous, declara- 
tions of law, expressions baseless and uncalled for with regard to political 
economy, and wound up with the statement, in effect if not in words, 
that everything it had said upon the subject was obiter dicta. All this was 
done for the purpose of declaring a statute to be unconstitutional which 
did not meet with the political approval of the judges. 

The political effect, however, of the decision was not to be ignored. 
It stayed the progress of tax reform in the State of Maryland for twenty- 
two years; in fact until in the fall of 1915, when the people of the state 
adopted a constitutional amendment in conformity with modern thought 
and beyond the power of judges to defeat. 

The whole case affords a striking illustration of the unwisdom of the 
exercise by the courts of the political power of declaring acts of the legis- 
lature unconstitutional. 

Some decisions of this character have had important effects upon the 
public mind, perhaps none more so than that of the Ives case (Ives v. South 
Buffalo Railway Co., 210 N. Y., p. 231; 34 L. R. A. (N. S.) 162) wherein 



54 

the Court of Appeals of New York held void an act of the legislature, 
prepared carefully by some of the best lawyers in the state, providing 
for workmen's compensation. This case more than any other was respon- 
sible for the proposition for recall of decisions advocated by ex-President 
Roosevelt. That in its determination the court was, despite some language 
elsewhere to the contrary, influenced by its political view is evident from 
one of its expressions: "If such economic and sociologic arguments as 
are here advanced in support of this statute, can be allowed to subvert the 
fundamental idea of property, then there is no private right entirely safe, 
because there is no limitation upon the absolute discretion of legislatures, 
and the guarantees of the Constitution are a mere waste of words." 

Stated in another fashion the court, balancing upon the one side 
possible social advantages, and, on the other, the rights of property, 
found the greater weight from a political point of view to be with the latter. 
This affords a further illustration in addition to the numerous instances 
we have cited of the fact that the courts, in the exercise of this power 
are acting politically or legislatively, rather than in a strictly judicial 
capacity. 

We shall forbear from enlarging upon the attitude and actions of 
the state courts upon political questions, as much that might be said 
would be a repetition of what has already been observed in connection 
with the discussion of the decisions of the Supreme Court of the United 
States. But this point we would emphasize: The position of the judi- 
ciary in the states, at least of their Supreme Courts, with regard to state 
legislation, is exactly parallel with the position of the Supreme Court 
with regard to the legislation of Congress. If the Supreme Court ought 
not to have or exercise any control over the legislation of Congress, 
neither should the Supreme Courts of the states exercise any control 
over the legislation of their respective states. (In fact, in only one state 
in the Union — Georgia — has the constitution in express terms con- 
ferred this power upon its judiciary.) On the other hand, if, in the interest 
of uniformity and of the preservation of the Constitution from attack by 
subordinate bodies, the Supreme Court should have power to control 
the action of states and their subordinate agencies where it is most likely 
to be violated, so the highest state judiciary should be able to control 
the illegal acts of counties, cities, towns, commissions, and executive 
officers when not acting under the strict authority of the state constitu- 
tion and laws. 

We can not forbear from remarking that while the Supreme Court 
rarely interferes with acts of national legislation, the table we produce 
indicates that the tendency, as far as the judiciary of the states is con- 
cerned, has been quite different. The state courts have shown less fear 
of the state legislatures than has been displayed in a national way. 
Beyond this, the power of control having been once established, the oppor- 
tunities for its exercise have been multiplied among the states by the 
lengthening of state constitutions, and the multiplicity of provisions 
attaching either to the manner in which legislation shall be enacted, 



55 

or the limitations of its subject-matter. With each new provision has 
come a new occasion or excuse for the exercise of judicial power. These 
have been continually availed of. 

All things considered, therefore, the corrective for which we 
seek must be of the same general nature whether applied to the nation or 
to the states. 

PRACTICE OF FOREIGN COUNTRIES AS TO REVIEW OF LEGIS- 
LATIVE ACTS 

As we have indicated, in the time of Blackstone the Parliament of 
England was omnipotent, as indeed it still is. It is immaterial to say that 
Parliament is a court, and that as a court — the highest in the land — its 
declarations are followed by other courts. It is undoubtedly true that at 
important periods of its history Parliament has been a court. (See "The 
High Court of Parliament and its Supremacy," by Mcllwain.) Prof. 
Mcllwain remarks, with justice (Preface, page X) : 

"To say that the present attitude of our courts toward statutory enactment has 
an historical basis, to hold as I do that it is a judicial habit which can be traced back to 
conditions in mediaeval England, is by no means to give it a clean bill of health. To say 
that this habit has precedent for it is not necessarily to say that it is wholly good. To 
show that it has marked resemblances to conditions in Tudor England, is not enough 
to shield it from the criticism of the twentieth century." 

It sufhces that at the present time Parliament is not a court, even 
though a few members of the Upper House act as a court of appeal, those 
so acting being judges themselves, though theoretically the whole House of 
Lords might have taken part in the judicial action. 

England, a country upon whose traditions and ideas of liberty our 
own are largely based, and in which the liberty of the subject, as he is 
termed, is at every point as well conserved as possibly can be the liberty of 
a citizen of the United States, has no judicial review. Yet it remains a 
country as to which we may understand Tennyson's tribute : 

"A land of settled government, 
A land of old and just renown, 
Where freedom slowly broadens down 
From precedent to precedent." 

If we cross the Channel from England to France we find according to 
"Judicial Power and Unconstitutional Legislation" that: 

Excluding the ill-fated document known as the Polish Constitution of May 3d, 
1791, the French constitution of September 3d, 1791, was the first written one in Europe. 
Article 16 of its declaration of the rights of men and citizens is thus translated: 

"Every society in which the guarantee of rights is not secured, or the separation 
of powers is not fixed has no constitution." 

Articles 1 and 3 of Chapter 5 of the Constitution provide: 

"The judicial power can not in any case be exercised by the legislative body or by 
the king. 

"The tribunals can not interfere with (s'immiscer dans) the exercise of the legis- 
lative power, nor suspend the execution of the laws, nor encroach upon administrative 



56 

functions, nor cite any administrators to appear before them on account of their func- 
tions." 

The general relation of the French constitution of 1791 to the past was revolution- 
ary, and its continuance was of brief duration. Its above restriction of judicial power 
had, however, a future and a past. That restriction has unquestionably prevailed in 
France from 1791 to the present day under all forms of government. 

There was tremendous reason in French experience for the adoption 
by France of the rule to which from 1791 it has adhered; that is, that the 
judiciary should not presume to interfere with the legislation of the French 
Assembly. Reviewing the powers exercised by the Parliament (Parle- 
ment) of Paris, itself a body of judges, Brooks Adams, in his ''Theory of 
Social Revolutions," referring to the edict prepared by Turgot doing away 
with the exemption of the nobility from taxation, says (page 141) : 

"To be binding, the edicts had to be registered by the Parliament among the laws 
of France, and Parliament declined to make registration on the ground that the edicts 
were unconstitutional, as subversive of the monarchy and of the principle of order. The 
opinion of the court was long, but a single paragraph gives its purport: 'The first rule 
of justice is to preserve to every one what belongs to him; this rule consists, not only 
in preserving the rights of property, but still more in preserving those belonging to the 
person, which arise from the prerogative of birth and of position. . . . From this 
rule of law and equity it follows that every system which, under an appearance of 
humanity and beneficence, would tend to establish between men an equality of duties, 
and to destroy necessary distinctions, would soon lead to disorder (the inevitable result 
of equality), and would bring about the overturn of civil society.' " 

With entire propriety Mr. Adams remarks (page 142) : 

"This judicial opinion was an enunciation of the archaic law of caste as opposed 
to the modern law of equality, and the cataclysm of the French Revolution hinged upon 
the incapacity of the French aristocracy to understand that the environment, which 
had once made caste a necessity, had yielded to another which made caste an impossi- 
bility." 

In a word we may say that the power of the judges to declare an act 
unconstitutional and to refuse it registration as contrary to the then un- 
written constitution of France — therefore unconstitutional — was a most 
important factor in furthering the French Revolution with all its horrors. 

It has been urged by at least one bar association that the effect of want 
of power in the judiciary to review legislative acts in France has made of 
the French judiciary a servile body, and with fine inconsistency the same 
bar association report has sought to demonstrate the truth of this state- 
ment by referring to the Dreyfus Case, forgetting that the decision in this 
case was first rendered by a military court-martial and was finally, to 
translate exactly the French word, "broken" by the Court of Cassation of 
France. The bar association report also forgets that if it be true that the 
French judiciary is servile, the cause is to be found in quite another circum- 
stance. A man enters the judicial service precisely as he would enter 
another "career," such as that of the diplomatic or consular service, and is 
in his advancement subject to favor of the executive power. Under these 
circumstances servility may be profitable. Reasoning of such a nature, 
ignoring essential facts, coming from the bar association reminds one of the 
fanciful logic of "Alice in Wonderland." 



57 

If we turn to Germany we find this declaration of Bluntschli's Public 
General Law cited by Coxe (page 75) : 

"In most modern states there is, however, no legal remedy against the validity 
and 'applicability of the law allowed upon the ground that the contents thereof stand in 
contradiction to the constitution. The authority of the legislative body, so far as its 
functions reach, is valid as the highest and as an incontestable authority. Hence the 
courts are not empowered to touch the contents of a law and, by their own authority, 
to declare the same to be invalid." 

Further citing from Coxe (page 95), we learn: 

"The quotation from Bluntschli's Public Law, previously given, is authority for 
the proposition that, in 1863, in Germany, no judicial court could declare a law of the 
state to be void because conflicting with the written constitution of the state. That 
proposition was in 1863, and is since, equally true of the judiciaries of the several states 
of the German Empire. Between those two dates, however, two most interesting cases 
have been cited, in the first of which the truth of the proposition was denied with great 
ability by the Hanseatic Court of Upper Appeal at Lubeck. In the second case, the 
doctrine of the first was overruled by the Imperial Tribunal or Supreme Court of the 
German Empire. Thus, with the exception of a temporary reco~nition within the 
limited territories of the Hanseatic republics, the proposition in question has always 
been law in the different states of Germany possessing written constitutions; that is to 
say, in nearly every German state." 

The bar association report before referred to attributes the combina- 
tion of German autocracy and German socialism to the want of judicial 
control over legislative acts, coupled with the fact that there is a German 
Council of Revision which may prevent the enactment of proposed laws 
because of want of constitutionality or irrespective of such a question. 
There is no apparent connection between the powers of the Council of 
Revision and the want of power of the German judiciary over legislative 
acts. The history of England sufficiently demonstrates that judicial 
power over constitutions is not necessary to insure the freedom of the citi- 
zen or subject or to escape autocracy. 

It is to be noted, however, that in Germany the highest imperial court 
may declare the acts of subordinate state legislative bodies to be uncon- 
stitutional, and this affords a precedent to be borne in mind in the sub- 
sequent discussion of the whole subject. 

Turning to Switzerland we discover that a condition exists analogous 
to that prevailing in Germany, but without a council of revision. The 
Swiss Federal Tribunal is obliged to obey and apply all laws of the federal 
assembly in all cases coming under its jurisdiction, the last paragraph of 
article 113 of its constitution reading: 

"In all these cases, however (covering both its civil and criminal jurisdictions), 
the laws and generally obligatory resolutions passed by the Federal Assembly and also 
the treaties ratified by it shall be binding for the Federal Tribunal." 

In a parallel way, the judiciary of a canton may not decide whether 
a cantonal law is or is not repugnant to the cantonal constitution, although 
it would seem that the Federal Tribunal may pass upon the question as to 
whether the cantonal laws are contrary to the Federal Constitution. 
(Coxe, pages 87, 88, 89.) 



58 

Having discovered that England, France, Germany and Switzerland 
do not find it necessary that the judiciary should review national legislative 
action, in England without a written constitution and in the other countries 
with one,' it does not seem important to prolong further this branch of the 
discussion. It becomes relatively unimportant what powers of control 
over colonial action are retained by the British Privy Council as to the 
Australian, South African, Canadian or other colonies subordinate to the 
English Crown, or what may be the provisions of the constitution of 
Australia or of the Dominion. Still less important to us is the discovery 
of the fact that in Argentina, Venezuela and perhaps other South American 
countries, the judiciary assumes to overrule the legislature in its actions 
involving constitutional questions. 

MANNER IN WHICH CONSTITUTIONAL QUESTIONS MAY ARISE 

From a review of the discussion up to this point, and from an analysis 
of the cases referred to in the appendices, it will become apparent that 
questions of constitutional law have arisen under the following different 
classes of circumstances : 

First. As to Federal authorities — 

(a) Involving the constitutionality of acts of Congress. 

(b) Involving, apart from the provision; of any act of Congress, acts of Fed- 

eral Judiciary or Federal Administrative authorities. 

Second. As to state authorities — 

(a) Involving constitutionality under the Federal Constitution of state con- 

stitutions and state laws. 

(b) Involving constitutionality of acts, apart from state laws or constitu- 

tions, of state authorities including municipalities, executive officers 
and judges, and of commissions and other bodies possessing such leg- 
islative authority as may be deputed to them by the state legislature. 

In Appendix A of cases in which questions of constitutionality have 
been passed upon by the Supreme Court of the United States, we have not 
undertaken to include the acts of officers, commissions and municipali- 
ties which were regarded as in excess or outside of the authority conferred 
upon them by the legislature; otherwise the list is believed to be 
complete. The omission is made because the subject-matter of this report 
deals primarily with the disposition made by the courts of legislative acts 
rather than upon the attitude of the judiciary toward acts not founded upon 
express provisions of law. 

PROPOSED REMEDIES 

It must be apparent from the foregoing that very serious evils have 
resulted from the assumption, whether colorably justified or not, by the 
Supreme Court of the United States of the power to declare acts of Con- 
gress unconstitutional, and that in the future, as in the past has been the 
case, its continued exercise may at any moment involve the country in 



59 

serious dangers. We will not forget the example afforded us by the refusal 
of the Parliament of Paris to register the edicts of Turgot which it con- 
sidered unconstitutional, the Dred Scott case, and the scarcely less mo- 
mentous cases pertaining to this jurisdiction which we have discussed. 
But we have the acknowledged existence of the power of the Supreme Court 
of the United States over the legislation of states. Coupled with this is 
the fact that while this power has, in certain instances, been carried to an 
unjustifiable extent, nevertheless in others it has been absolutely necessary 
for the preservation of the Union as a solid nation. These conditions have 
excited the attention of publicists, and the difficulties call for a possible 
solution. 

The Recall 

As a remedy, several states of the Union, including, among others, 
California, Oregon and Arizona, have extended the recall to include judi- 
cial officers. None of the evil effects prophesied by lawyers and judges in 
opposing this suggestion have accompanied its adoption, but it is incon- 
venient, to say the least, so far as the Federal judiciary is concerned; and, 
further, it comes as it were, after the fact, and is, therefore, not complete, 
while subsequent courts are not prevented from following in the footsteps 
even of the recalled officer. No principle can be settled by the recall, 
although through its instrumentality the unwisdom of particular lines of 
conduct in special instances may be demonstrated to the judiciary. 

Recall of Decisions 

This proposition, as forcefully advocated by the late ex-President 
Roosevelt, is subject to the comment made upon the recall of judicial 
officers. At best it affords a clumsy way of securing the popular repeal 
of a judicial declaration, but it does not alter the law as applied to the 
parties in the case, the principle of which it is sought to change. In a 
sense it has received practical sanction by the voters of the State of New 
York with regard to the principles enunciated in Ives v. South Buffalo 
Railway Company (210 N. Y., 231, 34 L. R. A. (N. S.), 162) and of the 
States of the Union through the adoption of the Income Tax Amendment 
of the Federal Constitution. When, however, we consider that in the 
course of a given year a number of statutes may be declared unconsti- 
tutional by the highest court of a state or of the United States, we can 
understand that continually recurring appeals to the people to correct 
the supposed errors of the judiciary will not be popular or in the end 
very effective. Furthermore, it is to be remarked that at best the idea 
of the recall of decisions was never intended to apply to more than the 
decisions of a state court, and that objections to such a course for national 
action would be almost insuperable. 

Stare Decisis 

Some lawyers of prominence and ability have urged as a remedy 
that by constitutional amendments the judicial doctrine of stare decisis 



60 

(the principle which compels judges in later cases to accept the attitude 
of authorized tribunals once expressed and to follow their declarations) 
should be abolished, and have believed that, this course once taken, this 
artificial barrier would no longer prevent a later court with fuller thought 
and information from correcting the errors of an earlier one. But we have 
no assurance for believing that the errors would be so corrected. Stare 
decisis is not a doctrine which can be abolished, we would think, by a con- 
stitutional amendment. It is not a concrete material fact, but an attitude 
of mind which judges, if so disposed, may adhere to as well without as with 
a constitutional amendment, and which will cling to them, consciously or 
unconsciously, whatever may be contained within the lines of a written 
constitution. 

Senator Owen's Proposition 

Senator Owens has introduced a bill in Congress which, omitting 
the preamble and the enacting clause, immaterial for the present purpose, 
reads as follows: 

"That from and after the passage of this act Federal judges are forbidden to 
declare any act of Congress unconstitutional. 

"No appeal shall be permitted in any case in which the constitutionality of an act 
of Congress is challenged, the passage by Congress of any act being deemed conclusive 
presumption of the constitutionality of such act. 

"Any Federal judge who declares any act passed by the Congress of the United 
States to be unconstitutional is hereby declared to be guilty of violating the constitu- 
tional requirement of 'good behavior' upon which his tenure of office rests and shall be 
held by such decision ipso facto to have vacated his office. 

"Sec. 2. That the President of the United States is hereby authorized to nomi- 
nate a successor to fill the position vacated by such judicial officer." 

We can not believe that this bill will solve the difficulty, as it covers 
but part of the ground, and that doubtfully. 

To begin with, the proposition is limited, of necessity, perhaps, 
in application to the action of federal judges, leaving untouched the action 
of state judges in passing upon federal statutes. It penalizes any federal 
judge declaring an act passed by the Congress of the United States to 
be unconstitutional. This proposition would have to pass the scrutiny 
of the very judiciary it is designed to limit, and on one theory or another 
would be held unconstitutional. Besides, to threaten with a club does 
not go to the root of the matter. The bill further proposes to prohibit 
the appeal, presumably to the Supreme Court of the United States, of 
any case in which the constitutionality of an act of Congress is challenged, 
the enactment by Congress being deemed conclusive presumption of 
such constitutionality. While the courts would doubtless deny, in 
view of their past history and undisputed exercise of powers over legisla- 
tion extending over more than one hundred years, that any conclusive 
presumption could be indulged in as against their action, it is feasible 
to prohibit appeals which raise the question of constitutionality from 
going to the Supreme Court of the United States, as the Supreme Court 



61 

only possesses such appellate jurisdiction as Congress gives it. The effect 
of this limitation was fully recognized in the McCardle case to which we 
have had occasion heretofore to make reference. But prohibiting appeals 
would not control the lower courts. 

It might further be added that a declaration by one Congress as, 
for instance, the one passing the act, as to good behavior being violated 
by holding an act of Congress unconstitutional, will not be binding upon 
another Congress, while there may be question whether a judge can be 
ousted from office for want of good behavior except by regular impeach- 
ment proceedings. Such step as we may take, therefore, must be more 
complete and fundamental than is proposed by Senator Owens. 

Other suggestions will be considered in connection with the recom- 
mendations which I shall now. proceed to make. 

SUGGESTED REMEDIES 

If what has so far been written be correct the state judiciary and the 
judiciary of the United States should be placed upon one common basis, 
and our first proposition would be : 

The Supreme Court of the United States and state and national courts 
generally shall have no power to pass upon the constitutionality of con- 
gressional enactments. The courts of the respective states shall have no power 
to pass upon the constitutionality of the enactments of their respective legisla- 
tures, except so far as such enactments are contrary to the National Constitu- 
tion or to national laws or treaties, which are given constitutional recognition. 

The arguments in favor of this proposition have been sufficiently 
developed in what has already been said. Some of the counter-arguments 
may be briefly referred to. 

It is urged that this proposition would place too great a power in 
the hands of the legislative bodies — a power which might be exercised 
by them to the prejudice of public and private rights. To this it is to 
be answered that the proposition is not without precedent; that, judged 
by their standards of principle which in their essence, whatever may be 
their special forms, do not so far differ from our own as to make their 
experience inapplicable, England with an unwritten constitution, and 
France, Germany and Switzerland with written constitutions, have not 
suffered from the fact that in none of them can the courts review or ques- 
tion their highest legislative acts, although in Germany and Switzerland 
(federated governments) the highest courts may review the constitutionality 
of the acts of inferior governments. 

It is urged that, though it be admitted that on every great occasion 
the Supreme Court has failed to reach a safe determination on large 
public questions as touching their constitutionality, nevertheless, the exist- 
ence of the power has restrained Congress and the several legislatures 



62 

from indulging in many other things which would have been clearly and 
pronouncedly violative of the constitution; that, for instance, Congress 
might declare itself to be the sole fountain of government and entirely 
reverse our constitutional forms were it not restrained by fear of Supreme 
Court action. 

This is one of the things which we may regard as conceivable but 
presenting no objection of practical importance. Today the President 
is commander-in-chief of the army and navy. We might as well assume 
that because he possesses this enormous power he will employ it to con- 
stitute himself a dictator. The fact is that we have no right to believe 
that a majority of Congress, or, if the President withholds his approval, 
two-thirds of both houses, will unite deliberately to set aside a constitution 
which has been adopted by and received the acquiescence of the people 
for more than one hundred and thirty years. 

There are certain other assumptions which we have a right to make 
which may be indulged in to support the belief that the suggestion now 
made would result in probably better observance of the constitution 
by the legislature than now is practiced. Today Congress and the state 
legislatures are tempted to pass unconstitutional acts on the theory that 
there is no telling what the Supreme Court may say about them and that 
the final responsibility rests with that organ of the government. Respon- 
sibility breeds care, and in the United States increasing care will be exer- 
cised in the preparation and passing of measures once Congress or a legis- 
lature shall thoroughly feel that there is to be no shifting of responsibility 
for wrongful acts. The present tendency of legislation, even under the 
system, or want of it, existing in the United States, is toward the per- 
fection of legislation before its enactment. This is illustrated by the growth 
of legislative reference bureaus in half a dozen or more states. 

Our second proposition is: 

The Supreme Court shall retain 'its jurisdiction to declare unconstitu- 
tional any acts of executive and inferior judicial powers in excess of legis- 
lative authority, and a like jurisdiction over acts of state legislatures, including 
acts of commissions; and the state courts shall possess and retain power 
to pass upon the constitutionality of the acts of counties, cities, towns and 
administrators of whatever nature. 

Our very cohesiveness as a nation depends upon the existence of 
some national reviewing authority covering the instrumentalities sub- 
ordinate to the central power, this alike in the interest of good order and 
good administration. Within the radius of its jurisdiction a like review- 
ing authority must exist within the several states. We have found it 
impracticable nationally that Congress should assume and exercise this 
power, and for other reasons, though not of the same marked importance, 
the general rule may properly extend to the states. 

Our third proposition is: 

The Supreme Court of the United States, in the exercise of its jurisdic- 
tion to declare an act of the state legislature or of any state or Federal agency 



63 

including the judiciary, to be unconstitutional, shall only do so by the acqui- 
escence of considerably more than a bare majority of its members. Three- 
fourths of the entire membership of the court should concur to such end, and 
the like requirement shall hold as to the highest courts of the states. 

This proposition finds a certain precedent in the constitution of Ohio, 
adopted in 1912, which reads as follows: 

"Ohio Constitution, Article IV. — Judicial — Sec. 2. . . . No law shall be held 
unconstitutional and void by the Supreme Court without the concurrence of at least all 
but one of the judges, except in the affirmance of a judgment of the court of appeals 
declaring a law unconstitutional and void." . . . 

Its justification is to be found, if any were needed, in numberless 
decisions of the Supreme Court of the United States. Repeatedly we have 
been told by the Supreme Court that the power to declare an act of Con- 
gress unconstitutional is a power of such gravity that it should only be 
exercised where there is no reasonable doubt of its application; that all 
questions of doubt were to be solved in favor of the legislative act. After 
having declared this principle, so salutary if the Supreme Court were to 
exercise the power at all, the most important state and national laws have 
been struck down by a vote of five to four. We are left to conceive if we 
may that a constitutional proposition is free from doubt when only five 
men out of nine — a bare majority — are able to unite in saying that uncon- 
stitutionality exists. In the case of jury trials, twelve men upon a question 
of fact involving small amounts of property are required to unite. Why a 
materially different rule should be adopted as to a question of funda- 
mental law is not readily apparent. 

Our fourth proposition is: 

Coupled with the foregoing reforms, there should go hand in hand the 
initiative and referendum, proportional representation, and the preferential 
ballot. 

Without these reforms our constitutional government, including also 
methods of attaining justice, will lack much of completeness. 

We need the initiative and referendum so that legislative sins, both 
of omission (corrected by the initiative) and commission (corrected by the 
referendum) may be promptly rectified. 

The remark of Bryce (The American Commonwealth, Chapter 23) 
that, "The Swiss habit of constantly recurring to popular vote (the initi- 
ative and referendum) makes it less necessary to restrain the legislature 
by a permanently enacted instrument," has ample justification. 

We need proportional representation for another reason and to meet 
another objection urged by those who are devoted to the preservation of 
the powers now held by the judiciary. It is insisted that if the legislature 
be unrestricted by judicial action, there is danger of oppression by a 



64 

numerical majority controlling in the legislature. While the danger urged 
is, as it appears, largely theoretical, and while the makers of the objec- 
tion ignore the fact that at present, through judicial action, the rights 
of the majority are repeatedly held subservient to those of a very small 
minority, even this colorable objection should be met as far as possible. 
Under proportional representation any considerable section of the com- 
munity, whether it be set apart by wealth or religion or color, or any other 
of the factors which serve to divide human life, may, by uniting, send its 
share of representatives to the legislature to be present to protect the 
interests and well-being of those for whom they stand, and the danger of 
oppressive legislation will be minimized to the vanishing point. At the 
same time, through the preferential ballot, we may obtain, in executive 
capacities, men who represent the majority of the people, a condition not 
now prevailing when often a president, to say nothing of the mayor of a 
town, may be the choice of the minority of his constituents. 

It has seemed impossible within a short compass to answer the ques- 
tions put by the Executive Council of the Federation, and even if a formal 
answer might have been quickly given, it has seemed ad/isable to justify 
the faith herein set forth. The Executive Council now has before -it one 
of the gravest fundamental questions with which it will have to deal — 
the preservation of a truly democratic government against what has often 
been called the "Aristocracy of the Robe." 

Respectfully submitted. 

JACKSON H. RAI^STON. 

Washington, D. C, May, 1919. 



oo 



APPENDIX A 



LIST OF CASES IN THE SUPREME COURT OF THE UNITED STATES IN WHICH 
FEDERAL AND STATE STATUTES WERE ADJUDGED UNCONSTITU- 
TIONAL BETWEEN VOL. 132 AND VOL. 247, BOTH INCLUSIVE, BEING 
ALL CASES FROM AND INCLUDING OCTOBER TERM, 1889, TO AND 
INCLUDING OCTOBER TERM, 1917 

While absolute perfection in enumeration is perhaps impossible, as shown by 
imperfections noted in the text as made in the appendix attached to Vol. 131, United 
States Supreme Court Reports, yet it is believed that the following tables — the result of 
very considerable labor — are as nearly correct as may reasonably be expected. The 
caution is to be given, however, that the tables are limited t ) declarations by the Supreme 
Court of the invalidity of statutes and municipal ordinances. 

Cases involving the independent acts of tribunals, such as public service commis- 
sions, not based upon particular provisions of statutes — cases like Washington ex rel. 
v. Fairchild, 224 U. S., 510, 56 Law Ed., 863; Railroad Commission v. Worthington, 
225 U. S., 101, 56 Law Ed., 1004; Raymond v. Chicago Union T. Co., 207 U. S., 20, 52 
Law Ed., 78; Atlantic Coast Line Ry. Co. v. Wharton, 207 U. S., 328, 52 Law Ed., 230; 
Great Northern Ry. Co. v. Minnesota, 238 U. S., 340, 59 Law Ed., 1337, and Londoner 
v. Denver, 210 U. S., 373, 52 Law Ed., 1103— are omitted. 

Cases where the lower courts have unconstitutionally exercised their power, as 
for instance in Carter v. Texas, 177 U. S., 442, 44 Law Ed., 839; Liu Hop Fong v. United 
States, 209 U. S., 453, 52 Law Ed., 888; Nat'l Exchange Bank v. Wiley, 195 U. S., 257, 
49 Law Ed., 184, and Rogers v. State of Alabama, 192 U. S., 226, 48 Law Ed., 417, are 
also excluded. 

Cases of mere conflict of laws where the statutes of the United States covering 
matters of commerce supercede state laws, like Illinois Central Railroad Co. v. Fuentes, 
236 U.S., 157, 59 Law Ed., 5 17, are also naturally excluded. 

No effort has been made to include cases where state statutes, broad in their terms, 
have been held not to apply to subjects of Federal control, as Southern Pacific Co. v. 
Jensen, 244 U. S., 205, 61 Law Ed., 1086, and Choctaw, etc., R. Co. v. Harrison, 235 
U. S., 292, 59 Law Ed., 234. So, also, are excluded cases involving unconstitutional 
acts of state officers under constitutional acts, such as Greene v. L. & I. R. Co., 244 
U.S., 499, 61 Law Ed., 1280. 

With the above qualifications in mind, and always recognizing the fact that the 
same case may come under several headings, and therefore no division will be regarded 
by all persons as exact, we submit the following as showing approximately the different 
headings under which Federal and state statutes have been treated as unconstitutional : 

Acts of Congress Declared Unconstitutional by the Supreme Court, 1889 to 1917 

Undue interference with Interstate Commerce and misapplication of congressional 

power with relation thereto. 3 

Illegal tax on foreign export. 3 

Excessive exercise of power by House of Representatives in matters of contempt.... 2 

Wrongful apportionment of direct taxes „ 1 

Denial of right to confront witnesses in criminal cases 1 

Wrongful imprisonment at hard labor. 1 

Wrongful attempt to change fixed boundaries of states 1 

Attempt to confer jurisdiction on courts over question not judicial 1 

Wrongful compulsion of witness to give evidence against himself 1 

Interference with constitutional right of trial by jury 1 

Taking private property without due compensation. 1 

Changing offenses properly against state into offenses against United States 2 

18 



66 

/ ADAIR a. UNITED STATES, 208 U. S., 161; Law Ed. 52, 436 (1908). 

Invalidates act of Congress prohibiting discharge from interstate commerce service 

because of membership in labor organization. 
Justices Holmes and McKenna dissent. 

COUNSELMAN v. HITCHCOCK, 142 U. S., 547; 35 Law Ed., 1110 (1892). 

Limits application of Sec. 860, R. S., as to compelling man to give evidence against 
himself contrary to the Fifth Amendment. 

I FAIRBANK v. UNITED STATES, 181 U. S., 283; Law Ed. 45, 862 (1901). 
Invalidates Federal stamp tax on foreign bill of lading. 
Justices Harlan, Gray, White and McKenna dissent. 



9 



to 



HAMMER v. DAGENHART, 247 U. S., 251; Law Ed. 62, 1101 (1918). 
Invalidates Federal Child Labor Law. 
Justices Holmes, McKenna, Brandeis and Clarke dissent. 

J^ HOWARD v. ILLINOIS CENTRAL R. R. CO., 207 U. S., 463; Law Ed. 52, 297 (1908). 
Declares invalid as applied to interstate commerce provisions of Federal Employers' 

Liability Act. 
Justice Day concurred in Chief Justice White's opinion and Justice Peckham in 

result. 
Justices Moody, Harlan, McKenna and Holmes dissent. 

5 JAMES v. BOWMAN, 190 U. S., 127; 47 Law Ed., 979 (1903). 

Act creating offense really against state can not be limited by construction to save 

constitutionality. 
Justices Harlan and Brown dissent. 

KELLER v. U. S., 213 U. S., 138; 53 Law Ed., 737 (1909). 

Invalidates act punishing harboring alien woman for immoral purposes within 

three years after her arrival. 
Justices Holmes, Harlan and Moody dissent. 

KILBOURN v. THOMPSON, 163 U. S., 168; 26 Law Ed., 377 (1881). 

Court holds House of Representatives not vested with all powers over contempt 
which belonged to House of Commons. 

KIRBY v. UNITED STATES, 174 U. S., 47; Law Ed. 43, 890 (1899). 

Declares invalid act of Congress allowing judgment of conviction against principal 
felons to be evidence in prosecution against receiver as to property stolen from 
the United States. 
Justices Brown and McKenna dissented. 

LOUISIANA v. MISSISSIPPI, 202 U. S., 1; Law Ed. 50, 913 (1906). 

Denies the right of Congress to change fixed boundaries of state after its admission 
to the Union. 
MARSHALL v. GORDON, 243 U. S., 521; Law Ed. 61, 881 (1917). 

Denies power of House of Representatives to deal directly by way of contempt 

MONONGAHELA NAV. CO. v. U. S., 148 U. S., 312; 37 Law Ed., 463 (1893). 



1 



6 



Taking franchise without payment by act of Congress treated as taking of private 
property without due compensation. 

j MUSKRAT v. UNITED STATES, 219 U. S., 348; Law Ed. 55, 247 (1911). 

Invalidates act of Congress referring question to court for determination not pre- 
sented in a case or controversy. 

/ ° POLLOCK v. FARMERS LOAN & TRUST CO., 158 U. S., 601; Law Ed. 39, 1108 
(1895). 
Declares invalid Federal income tax law of 1894. 
Justices Harlan, Brown, Jackson and White dissent. 

(Reverses on rehearing in part same case reported in 157 U. S., 429; 39 Law Ed., 
759.) 



67 

f I RASMUSSEN v. U. S., 197 U. S., 516; 49 Law Ed., 862 (1905). 

Act allowing six jurors only in Alaska misdemeanor cases held void. 
Justices Harlan and Brown separately concur. 

THAMES & MERSEY INS. CO., v. UNITED STATES, 237 U. S., 19; Law Ed. 59, 
821 (1915). 
Invalidates stamp tax on policies of marine insurance on foreign exportations 
imposed by congressional act. 

\*f UNITED STATES v. HVOSLEF, 237 U. S., 1; Law Ed. 59, 813 (1915). 

Invalidates stamp tax on charter parties to foreign ports imposed by congressional 
act. 

j 3 WONG WING v. UNITED STATES, 163 U. S., 251; 41 Law Ed., 140 (1896). 

Declares unconstitutional act of Congress permitting imprisonment at hard labor 

of Chinese ordered expelled from the country. 
Mr. Justice Field dissents in part. 

State and Municipal Acts Declared Void During Same Period 

Denial of Right to Trial by Jury (Thompson v. Utah) 1 

Ex Post Facto Law (Medley, petitioner) 1 

Civil Rights (Guinn v. United States, Myers v. Anderson, McCabe v. Atchison, T. 

& S. F. Ry. Co.).„ 3 

Impairing Obligation of Contract (Russell v. Sebastian, Detroit United R. Co. v. 
Michigan, Northern Ohio T. & L. Co. v. Ohio, Owensboro v. Cumberland T. 
& T. Co., Southern Pacific Co. v. Portland, Grand Trunk W. R. Co. v. South 
Bend, Louisville v. Cumberland T. & T. Co., Minneapolis v. Minneapolis S. 
Ry. Co., Louisiana ex rel. v. New Orleans, Houston & T. C. R. Co. v. Texas, 
Los Angeles v. Los Angeles City Water Works, Stearns v. Minnesota, Duluth 
& Iron Range R. Co. v. St. Louis County, Detroit v. Detroit Citizens Street Ry. 
Co., Citizens Bank v. Parker, Cleveland v. Cleveland City R. Co., Bradley v. 
Lightcap, Graham v. Folsom, Powers v. Detroit C. H. & M. R. Co., Vicksburg 
v. Vicksburg W. W. Co., American S. & Ref. Co. v. Colorado, McGahey v. Vir- 
ginia, Bank of Commerce v. Tennessee, Barnitz v. Beverly, Houston & T. C. 
R. Co. v. Texas, Shapleigh v. San Angelo, Pennoyer v. McConnaughy, Mobile, 
etc., R. Co. v. Tennessee, N. Y., etc., R. Co. v. Pa., Walla Walla City v. Walla 
Walla Water Co.) 30 

Denying Due Process of Law (Gast Realty Co. v. Schneider Granite Co., Chicago, 
M. & St. P. Ry. Co. v. Wisconsin, Southwestern T. & T. Co. v. Danaher, Coe 
v. Armour Fertilizer Works, Norfolk & Western Ry. Co. v. Conley, Northern 
Pac. R. R. Co. v. North Dakota, Coppage v. Kansas, Collins v. Kentucky, 
Smith v. Texas, C. M. & St. P. Ry. Co. v. Polt, Adams v. Tanner, New York 
Life Ins. Co. v. Dodge, Denver v. Denver Union Water Co., Buchanan v. Warley, 
Missouri Pac. Ry. Co. v. Tucker, St. Louis, Iron Mt. & S. Ry. Co. v. Wynne, 
Missouri Pac. Ry. Co. v. Nebraska, Louisville & Jeffersonville F. Co. v. Ken- 
tucky, Dobbins v. Los Angeles, Delaware, L. & W. Ry. Co. v. Penna., Union 
Refrigerator Transit Co. v. Kentucky, Buck v. Beach, Chicago, M. & St. P. 
Ry. Co. v. Minnesota, Missouri Pac. Ry. Co. v. Nebraska, Covington & Lex- 
ington T. R. Co. v. Sandford, Allgeyer v. Louisiana, Norwood v. Baker, Dewey 
v. Des Moines, Lake Shore & M. S. Ry. Co. v. Smith, Johnson v. Wells Fargo 
Co., Cleveland Elec. R. Co. v. Cleveland, Central of Ga. R. Co. t?, -Wright) 32 

Interferences with Interstate Commerce (Donald v. Phila. & Reading C. & I. Co., 
Rosenberg v. Pacific Express Co., Rossi v. Pennsylvania, C. B. & Q. Ry. Co. 
v. Railway Cord, of Wisconsin, Davis v. Virginia, Heyman v. Hays, South Cov- 
ington & Cin. St. Ry. Co. v. Covington, Sioux Remedy Co. v. Cope, Foote & 
Co. v. Stanley, Western Oil Ref. CoTlTXipscornb , Seaboard Airline Ry. Co. v. 
Blackwell, Erie Ry. Co. v. Winfield, Cheney Bros. v. Massachusetts, Interna- 
tional Paper Co. v. Massachusetts, Crew Levick Co. v. Pennsylvania, Looney 
v. Crane Co., Harrison v. St. L. & S. F. Ry. Co., Simpson v. Shepard, Crenshaw 
v. Arkansas, Williams v. City of Talladega, Buck Stove & Range Co. v. Vickers, 



68 

Louisville & N. Ry. Co. v. Cook Brewing Co., West v. Kansas N. G. Co., Hern- 
don v. Chicago, R. I. & P. Ry. Co., St. Louis & S. W. Ry. Co. v. Arkansas, 
International Text Book Co. v. Pigg, Ludwig v. Western U. T. Co., Western 
Union T. Co. v. Kansas, Adams Express Co. v. Kentucky, Allen v. Pullman's 
Palace Car Co., Norfolk & Western Ry. Co. v. Sims, Postal Telegraph-Cable 
Co. v. Taylor, St. Clair County v. Interstate S. & C. T. Co., Central of Georgia 
Ry. Co. v. Murphey, Darnell et al. v. Memphis, Galveston H. & S. A. Ry. Co. 
v. Texas, Scott v. Donald, Gulf, Colorado & S. F. Ry. Co. v. Lewis, Covington 
& Cin. Bridge Co. v. Kentucky, Herndon v. Titusville, Atchison, T. & S. F. 
Ry. Co. v. O'Connor, Cretcher v. Kentucky, Norfolk & Western Ry. Co. v. 
Pennsylvania, McCall v. California, Minnesota v. Barber, Leisy v. Hardin, 
Lyng v. Michigan, Western Union v. Alabama, Brumner v. Rebman, Harman 
v. Chicago, Illinois Central v. Illinois, Schollenberger v. Pa., Collins v. New 
Hampshire, Cleveland, etc., R. Co. v. Illinois, L. & N. R. Co. v. Eubank, 
Stockard v. Morgan, The Roanoke, Caldwell v. North Carolina, H. & T. R. 
Co. v. Mayes, Rearick v. Pa., Dozier v. 'Alabama, Southern R. Co. v. Reid, 
Northern P. R. Co. v. Washington) 63 

Interference with Foreign Commerce (Sault Ste. Marie v. International Transit 

Co.).__ _ 1 

Involuntary Servitude as Illustrated by Peonage Laws (United States v. Reynolds, 

Bailey v. State of Alabama) 2 

Non- Judicial Duties Imposed upon State Courts (Hendrickson v. Apperson) 1 

Taking Property without Due Compensation (Ettor v. Tacoma, Eubank v. City of 
Richmond, Choate v. Trapp, Meyer v. Wells Fargo & Co., Louisville & N. Ry. 
Co. v. Central Stock Yards Co., Muhlker v. New York & H. R. Co., Willcox v. 
Consolidated Gas Co., Smyth v. Ames) 8 

Equal Protection of the Laws (Truax v. Raich, A. T. & S. F. Ry. Co. v. Vosburg, 
Blake v. McClung, Cotting v. Godard, Connolly v. Union Sewer Pipe Co., Ex 
Parte Young, Gulf, Colo. & S. F. Ry. Co. v. Ellis, Blake v. McClung (2nd), 
McFarland v. American Sugar Ref. Co., Voight et al. v. Wright, Southern R. 
Co. v. Greene) ■. 11 

Interference with Revenue Laws of the Federal Government (North Dakota ex 
rel. Flaherty v. Hanson) '. 

Impairing Freedom of Contract (Lochner v. New York) 

Changing Legal'Tender by Action of State (Lee v. Robinson) 

Interference with Operations of National Government (Savings Bank v. Des Moines) 

Insufficient Number to Constitute Common Law Jury (Am. Pub. Co. v. Fisher) 

15S 



State Acts, Etc., Declared Unconstitutional by U. S. Supreme Court 

ADAMS EXPRESS COMPANY v. KENTUCKY, 214 U. S., 218; Law Ed., 53, 972 
(1909). m 
Declares invalid application of Kentucky statute to transportation of liquor 

by express company from state to state. 
Justice Harlan dissents. 

ADAMS v. TANNER, 244 U. S., 590; Law Ed., 61, 1336 (1917). 
Declares invalid employment agency law of Washington. 
Justices Holmes, McKenna, Brandeis and Clarke dissent. 

ALLEN v. PULLMAN'S PALACE CAR CO., 191 U. S., 171; 48 Law Ed., 134 (1908). 
Tax imposed by Tennessee upon sleeping car company engaged in interstate 
traffic, ignoring its character, held void. 

ALLGEYER v. LOUISIANA, 165 U. &, 580; 41 Law Ed., 835 (1897). 

Declares law of Louisiana as construed in that state unconstitutional as interfer- 
ing with private contract. 



69 

AMERICAN PUB. CO. v. FISHER, 166 U. S., 464; 41 Law Ed., 1079 (1897). 

Declares invalid territorial (Utah) statute providing for verdict by concurrence of 
nine jurymen in civil trial. 

AMERICAN SMELTING & REFINING CO. v. COLORADO, 204 U. S., 103; 51 
Law Ed., 393 (1907). 
Declaring unconstitutional Colorado act exacting from foreign corporation doing 
business there larger license tax then required from domestic corporation. 

ATCHISON, TOPEKA & SANTA FE RY. CO. v. O'CONNOR, 223 U. S., 280; 56 
Law Ed., 436 (1912). 
Invalidates tax imposed by Colorado on capital stock of foreign railway company 
the greater part of whose property and business is outside the state. 

ATCHISON, T. & S. F. RY. CO. v. VOSBURG, 238 U. S., 56; 59 Law Ed., 1199 
(1915). 
Invalidates Kansas law granting attorney's fees against railroad. 

BAILEY v. STATE OF ALABAMA, 219 U. S., 218; 55 Law Ed., 191 (1911). 
Declares invalid act of Alabama permitting peonage. 
Justice Holmes and Lurton dissent. 

BANK OF COMMERCE v. TENNESSEE, 161 U. S., 133; 40 Law Ed., 645 (1896). 
Invalidates revenue laws imposing additional tax as impairing state's contract. 
Justice White dissents. 

BARNITZ v. BEVERLY, 163 U. S., 118; 41 Law Ed., 93 (1896). 

Declares act of Kansas retroactively creating period of mortgage redemption un- 
constitutional. 

BLAKE v. McCLUNG, 172 U. S., 239; 43 Law Ed.,433 (1898). 

Declares unconstitutional Tennessee statute giving priority to residents in dis- 
tribution of assets of foreign corporation. 
Justice Brewer and Chief Justice Fuller dissent. 

BLAKE v. McCLUNG, 176 U. S., 59; 44 Law Ed., 371 (1900). 

Invalidates statute of Tennessee giving priority of assets to local resident. 

BRADLEY v. LIGHTCAP, 195 U. S., 1; 49 Law Ed., 65 (1904). 

Invalidates acts of Illinois as construed by its Supreme Court as impairing obliga- 
tion of contract by preventing mortgagee from obtaining a deed. 
Followed in Bradley v. Lightcap, 195 U. S., 24; Law Ed., 49, p. 75. 

BRENNAN v. TITUSVILLE, 158 U. S., 289; 38 Law Ed., 719 (1894). 

Municipal ordinace imposing tax on solicitors from out the state held unconsti- 
tutional, although based on law of Pennsylvania. 

BRUNMERy. REBMAN, 138 U. S., 78; 34 Law Fd., 862 (1891). 

Declares invalid (Va.) state statute as inter: cuence with interstate commerce. 

BUCHANAN ». WARLEY, 245 U. S., 60; Law Ed., 62, 149 (1917). 

Declares invalidity of Louisville ordinance limiting residential neighborhoods of 
colored people. 

BUCK v. BEACH, 206 U. S., 392; 51 Law Ed., 11^7 (1907). 

Restrains operation of Indiana statute on personal property belonging to non- 
resident and subject to taxation in the home state. 
Justices Day and Brewer dissent. 

BUCK STOVE & RANGE CO. v. VICKERS, 276 U. S., 204; 57 Law Ed., 189 (1912). 
Invalidates Kansas statute requiring foreign corporations to file detailed state- 
ment showing financial condition. 

CALDWELL t>. NpRTH CAROLINA, 187 U. S., 622; 47 Law Ed., 336 (1903). 

Declares invalid city ordinance imposing tax, as interference with interstate com- 
merce. 



70 

CENTRAL OF GEORGIA RY. CO. v. MURPHEY, 196 U. S., 194; 49 Law Ed., 
444 (1905). 
Declares invalid act of Georgia placing duty on initial carrier of tracing freight, etc. 

CENTRAL OF GA. R. CO. v. WRIGHT, 207 U. S., 127; 52 Law Ed., 134 (1907). 
Declares Georgia state tax law invalid as not affording due process of law. 

CHENEY BROS. v. MASSACHUSETTS, 246 U. S., 147; 62 Law Ed., 632 (1918). 
Invalidates application of Massachusetts excise tax to agent of foreign corporation. 

CHICAGO, BURLINGTON & QUINCY RY. CO. v. RAILWAY COMMISSION OF 
WISCONSIN, 237 U. S., 2201; 59 Law Ed., 926 (1915). 
Invalidates Wisconsin law relative to stoppage of trains at villages. 

CHICAGO, MILWAUKEE & ST. PAUL RY. CO. v. MINNESOTA, 134 U. S., 
418; 33 Law Ed., 970 (1890). 
Declares Minnesota act as construed by Supreme Court of Minnesota uncon- 
stitutional. 
Justices Bradley, Gray and Lamar dissent. 

CHICAGO, MILWAUKEE & ST. PAUL RY. CO. v. POLT, 232 U. S., 165; 58 Law 
Ed., 554 (1914). 
Invalidates South Dakota law imposing double liability on railway company 

for payment of damages under certain circumstances. 
Followed in Same v. Kennedy, 232 U. S., 626; 58 Law Ed., 762. 

CHICAGO, MIL. & ST. P. RY. CO. v. WISCONSIN, 238 U. S., 492; 59 Law Ed., 
1423(1915). 
Declares act of Wisconsin unconstitutional. 
Justices McKenna and Holmes dissent. 

CHOATE v. TRAPP, 224 U. S. 664; 56 Law Ed., 941 (1912). 

Declares invalid state tax of Oklahoma on lands of Indiana made non-taxable 
by Federal statute. 

CITIZENS BANK v. PARKER, 192 U. S., 73; 48 Law Ed., 346 (1904). 

Invalidates levy of license tax enacted by law of Louisiana in violation of charter 
rights. 

Justice Brewer, Chief Justice Fuller and Justice Harlan dissent. 
CLEVELAND C. C. & S. R. CO. v. ILL., 177 U. S., 514; 44 Law Ed., 868 (1900). 

Declares invalid Illinois state statute as interfering with interstate commerce. 

Justices Brewer and Shiras concur. 

CLEVELAND v. CLEVELAND CITY R. CO., 194U. S., 517; 48 Law Ed., 1 102 (1904) . 
Invalidates municipal ordinances affecting rates of fare. Followed in Cleveland v. 
Cleveland E. R. Co., 201 U. S., 520; 50 Law Ed., 854. 
CLEVELAND ELEC. RY. CO. v. CLEVELAND, 204 U. S., 116; 51 Law Ed., 399 
(1907). 
Invalidates municipal ordinance allowing another company to take property 
of said railway company in streets at expiration of franchise. 
COE v. ARMOUR FERTILIZER WORKS, 237 U. S., 412; 59 Law Ed., 1027 (1915). 

Invalidating provisions of Florida law without affording due notice, etc. 
COLLINS v. KENTUCKY, 234 U. S., 634; 58 Law Ed., 1510 (1914). 

Invalidates Kentucky statute because of uncertainty of test of legality prescribed 
by it. 
COLLINS v. NEW HAMPSHIRE, 171 U. S., 30; 43 Law Ed., 60 (1898). 

Declares invalid New Hampshire statute as interfering with interstate commerce. 
Justices Harlan and Gray dissent. 
CONNOLLY v. UNION SEWER PIPE CO., 184 U. S., 540; 46 Law Ed., 679 (1902). 
Invalidates provision of Illinois act excepting agricultural products and live stock 

in the hands of producers. 
Justice McKenna dissents. 



71 

COPPAGB v. KANSAS, 236 U. S., 1; 59 Law Ed., 441 (1915). 

Invalidates Kansas law forbidding employee to be discharged because member of 

labor organization. 
Justices Holmes, Day and Hughes dissent. 

COTTING v. GODARD, 183 U. S., 79; 46 Law Ed., 92 (1901). 

Invalidates Kansas statute fixing compensation to stock yards without reference 

to essential elements of cost. 
Justices Holmes, Gray, Brown, Shiras, White and McKenna concurred in result. 

COVINGTON & CINCINNATI BRIDGE CO. v. KENTUCKY, 154 U. S., 204; 
38 Law Ed., 962 (1894). 
Declares Kentucky law fixing bridge rates between Kentucky and Ohio unconsti- 
tutional. 
Chief Justice Fuller, Justices Field, Gray and White concur separately. 

COVINGTON & LEXINGTON T. R. CO. v. SANDFORD, 164 U. S., 578; 41 Law 
Ed., 560 (1896). 

Declares unconstitutional Kentucky act establishing unreasonable tariff of rates. 
CRENSHAW v. ARKANSAS, 227 U. S., 389; 57 Law Ed., 565 (1913). 

Declares invalid Arkansas act taxing traveling agent of non-resident manufacturer. 

CRETCHER v. KENTUCKY, 141 U. S., 47; 35 Law Ed., 649 (1891). 
Declares statute of Kentucky imposing license on express agents void. 
Chief Justice Fuller and Justice Gray dissent. 

CREW LEVICK CO. V. PENNSYLVANIA, 245 U. S., 292; 62 Law Ed., 295 (1917). 
Declares invalid state tax on business of selling goods in interstate and foreign 
commerce. 

DARNELL ET AL. v. MEMPHIS, 208 U. S., 113; 52 Law Ed., 413 (1908). 

Invalidates tax on property within the state product of the soil of other states, 
like products in Tennessee being exempted, being imposed under constitu- 
tion and laws of Tennessee. 

DAVIS v. VIRGINIA, 236 U. S., 607; 59 Law Ed., 795 (1915). 

Invalidates state license tax on interstate business in the state of Virginia. 

DELAWARE, LACKAWANNA & WESTERN RY. CO. v. PENNSYLVANIA, 198 

U. S., 341; 49 Law Ed., 1077 (1905). 
Invalidates Pennsylvania law including in basis of taxation value of coal mined, 

but situated in other states awaiting sale. 
Chief Justice Fuller dissents. 

DENVER v. DENVER UNION WATER CO., 246 U. S., 178; 62 Law Ed., 649 (1918). 
Invalidates municipal ordinance fixing water rates below amounts sufficient to 
return prevailing rate of interest. 
Justices Brandeis, Holmes and Clarke dissent. 

DETROIT v. DETROIT CITIZENS STREET RY. CO., 184 U. S., 368; 46 Law Ed., 
592 (1902). 
Invalidates ordinance affecting rate of charges for fares without company's consent. 

DETROIT UNITED RY. CO. v. MICHIGAN, 242 U. S., 238; 61 Law Ed., 268 (1916). 
Invalidates Michigan law impairing contract with street railway company as such 

law was construed by Supreme Court of Michigan. 
Justices Clarke and Brandeis dissent. 

DEWEY y. DES MOINES, 173 U. S., 193; 43 Law Ed., 665 (1899). . 

Invalidates Iowa statute permitting personal judgment against nonresident owner 
of property. 
DOBBINS v. LOS ANGELES, 195 U. S., 222; 49 Law Ed., 169 (1904). 

Invalidates municipal ordinance changing character of territory after a prior 
ordinance had been acted upon. 



72 

DONALD v. PHILADELPHIA & READING C. & I. CO., 241 U. S., 328; 60 Law 
Ed., 1027 (1916). 
State statute of Wisconsin declared unconstitutional, which forfeited license of 
foreign corporation for removing case to U. S. Court. 

DOZIER v. ALABAMA, 218 U. S., 124; 54 Law Ed., 965 (1910). 

Decalres invalid Alabama state statute imposing license tax, as interference with 
interstate commerce. 

DULUTH & IRON RANGE R. CO. v. ST. LOUIS COUNTY, 179 U. S., 302; 45 
Law Ed., 203 (1900). 
Impairing obligation of contracts by use of taxing power. 
Chief Justice Fuller and Justices Brewer, Shiras and Peckham concur in the result. 

ERIE RAILROAD CO. v. WINFIELD, 244 U. S., 170; 61 Law Ed., 1057 (1917). 
Invalidates New Jersey law construed to interfere with operation of Federal Em- 
ployers' Liability Act. 
Justices Brandeis and Clarke dissent. 

ETTOR v. TACOMA, 228 U. S.,146; 57 Law Ed., 773 (1913). 

Right once granted to abutting owners to compensation for consequential damages 
arising from original street grading is a vested property right, protected there- 
after from repeal. 

EUBANK v. CITY OF RICHMOND, 226 U. S., 137; 57 Law Ed., 156 (1912.) 

Declares invalid municipal ordinance based on Virginia statute allowing owners 
of two-thirds of certain abutting property to establish building line. 

FOOTE & CO. v. STANLEY, 232 U. S-, 494; 58 Law Ed., 698 (1914). 
Invalidates Maryland oyster inspection tax as excessive. 

GALVESTON, H. & S. A. RY. CO. v. TEXAS, 210 U. S., 217; 52 Law Ed., 1031 (1908). 
Invalidates Texas act taxing part receipts derived from interstate passengers. 
Justice Harlan, Chief Justice Fuller, Justices White and McKenna dissent. 

GAST REALTY CO. v. SCHNEIDER GRANITE CO., 240 U. S., 54; 60 Law Ed., 
523 (1915). 
Municipal ordinance declared unconstitutional. 

GRAHAM v. FOLSOM, 200 U. S., 248; 50 Law Ed., 464 (1906). 

Invalidates law abolishing municipal corporation as affecting obligation of municipal 
contracts. 

GRAND TRUNK W. R. CO. v. SOUTH BEND, 227 U. S., 544; 57 Law Ed., 633 
(1913).. 
Declares invalid repeal of ordinance acted on by grantees. 
Justice Day concurs in result; Justices Hughes and White dissent. 

GUINN v. UNITED STATES, 238 U. S., 347; 59 Law Ed., 1340 (1914). 

Declares amendment to Oklahoma constitution relative to voting unconstitutional. 

GULF, COLORADO & S. F. RY. CO. v. ELLIS, 165 U. S., 150; 41 Law Ed., 666 
(1897). 
Equal protection of the laws by act of Texas denied to railway company upon 

which is specially imposed attorney's fees. 
Justices Fuller, Gray and White dissent. 

GULF, COLORADO & S. F. RY. CO. v. LEWIS, 158 U. S., 98; 39 Law Ed., 910 (1895). 
Invalidates as to interstate commerce Texas act imposing penalty for failure to 
deliver goods on tender of rate named in bill of lading. 

HARMAN p. CITY OF CHICAGO, 147 U. S., 396; 37 Law Ed., 216 (1893). 
Holding invalid city ordinance interfering with interstate commerce. 



73 

HARRISON v. ST. LOUIS & S. F. RY. CO., 232 U. S., 318; 58 Law Ed., 621 (1914). 
Declares invalid Oklahoma act providing for revocation of license of outside corpo- 
ration, etc., relying on foreign citizenship. 

HENDRICKSON v. APPERSON, 245 U. S., 105; 62 Law Ed., 178 (1917). 

Declares invalid Kentucky statute allowing Circuit Court to levy and collect taxes. 

HERNDON v. CHICAGO, ROCK ISLAND & P. RY. CO., 218 U. S., 135; 54 Law Ed., 
970 (1910). 
Declares invalid Missouri law refusing rights to foreign company which brings 

or removes suit in or to a Federal court. 
Chief Justice Fuller concurs in result. 

HEYMAN v. HAYS, 236 U. S., 178; 59 Law Ed., 527 (1915). 

Invalidates privilege tax of Tennessee upon solicitation of mail orders. 

HOUSTON & T. R. CO. v. MAYES, 201 U. S., 321; 50 Law Ed., 772 (1906). 

Declares invalid Texas statute penalizing railroad as interference with interstate 

commerce. 
Chief Justice Fuller and Justices Harlan and McKenna dissent. 

HOUSTON & T. C. CO. v. TEXAS, 170 U. S., 243; 42 Law Ed., 1023,(1898). 

Declares article of Texas constitution as interpreted by state court affecting prior 
contracts with railroad under which they constructed their line to impair 
obligation of contract and deprive the company of property without due 
process of law. 

HOUSTON & T. C. R. CO. v. TEXAS, 177 U. S., 66; 44 Law Ed., 673 (1900). 
Invalidates Texas statute as affecting obligation of contract. 
Justice Brown concurs in part separately. 

ILL. CENTRAL R. CO.-». ILLINOIS, 163 U. S., 142; 41 Law Ed., 107 (1896). 
Declares Illinois state statute invalid as interference with interstate commerce. 

INTERNATIONAL PAPER CO. v. MASSACHUSETTS, 246 U. S., 135; 62 Law 
Ed., 624 (1918). 
Invalidates Massachusetts excise tax on foreign corporation based on amount of 

authorized capital stock. 
To identical effect is Locomobile Co. of America v. Massachusetts, 246 U. S., 146; 
62 Law Ed., 631 (1918). 

INTERNATIONAL TEXT BOOK CO. v. PIGG, 217 U. S., 91; 54 Law Ed., 678 
(1910). 
Declares invalid Kansas statute touching filing of statement of financial condition 

of foreign corporation. 
Chief Justice Fuller and Justice McKenna dissent. 

JOHNSpN v. WELLS FARGO CO., 239 U. S., 234; 60 Law Ed., 243 (1915). 

Action of state board of equalization on assessments violation of South Dakota 
constitution. 

LAKE SHORE & M. S. RY. CO. v. SMITH, 173 U. S., 684; 43 Law Ed., 858 (1899). 
Invalidates act of Michigan extending time of life of all railway tickets. 
Justices Fuller, Gray and McKenna dissent. 

LEE v. RpBINSON, 196 U. S., 65; 49 Law Ed., 389 (1904). 

Invalidates act allowing payment of taxes by tender of bond script. 

LEISY v. HARDIN, 135 U. S., 100; 34 Law Ed., 128 (1890). 

Declares void Iowa statute as interfering with interstate commerce forbidding 
delivery of original packages. 

Justices Gray, Harlan and Brewer dissent. 
LOCHNER v. NEW YORK, 198 U. S., 46; 49 Law Ed., 937 (1905). 

Invalidates New York law controlling hours of bakers. 

Justices Holmes, Harlan, Day and White dissent. 



74 

LOONEY v. CRANE CO., 245 U. S., 178; 62 Law Ed., 230 (1917). 

Declares invalid Texas state tax on foreign corporations engaged in interstate com- 
merce business on authorized stock and also franchise tax based on capital, etc. 

LOS ANGELES v. LOS ANGELES CITY WATER CO., 177 U. S., 558; 44 Law 
Ed., 886 (1900). m 
Invalidates city ordinance covering water rates impairing obligation of contracts. 

LOUISIANA EX REL. v. NEW ORLEANS, 215 U. S., 170; 54 Law Ed., 144 (1909). 
Declares invalid Louisiana act depriving receiver of Metropolitan Police Board of 
right of taxation. 

LOUISVILLE z>. CUMBERLAND T. &T. CO., 224 U. S., 649; 56 Law Ed., 934 (1912). 
Declares invalid revocation by municipal corporation of right to construct and 
maintain telephone system. 

LOUISVILLE & JEFFERSONVILLE F. CO. v. KENTUCKY, 188 U. S. 385; 47 
Law Ed., 513 (1903). 
Invalidating tax of Kentucky on franchise granted by another state. 
Chief Justice Fuller and Justice Shiras dissent. 

LOUISVILLE & NASHVILLE RY. CO. v. CENTRAL STOCK YARDS CO., 212 

U. S., 131; 53 Law Ed., 441 (1909). 

Declares invalid Kentucky statute requiring railway company to deliver its own 

cars to another railway company under provisions named in the statute. 

Justice McKenna dissents; Justices Harlan and Moody concur in the dissent. 

LOUISVILLE & NASHVILLE RY. CO. v. COOK BREWING CO., 223 U. S., 70; 
56 Law Ed., 355 (1912). 
Invalidates Kentucky act affecting interstate transportation of intoxicating liquors. 

LOUISVILLE & N. R. R. CO. v. EUBANK, 184 U. S., 27; 46 Law Ed., 416 (1902). 
Declaring invalid Kentucky statute as interference with interstate commerce. 
Justices Brewer and Gray dissent. 

LUDWIG v. WESTERN UNION TEL. CO., 216 U. S., 146; 54 Law Ed., 423 (1910). 
Declares invalid Arkansas law requiring payment by foreign telegraph company 
of a certain amount based on capital stock for filing articles of incorporation. 
Chief Justice Fuller, Justice McKenna and Justice Holmes dissent. 

LYNG v. MICHIGAN, 135 U. S., 161; 36 Law Ed., 150 (1890). 

Tax on agent of importers disposing of original packages held void. 
Justices Harlan, Gray and Brewer dissent. 

McCABE v. ATCHISON, T. & S. F. RY. CO., 235 U. S., 15 1; 59 Law Ed., 169 (1914). 
Invalidates Oklahoma law failing to provide equal railway accommodations for 

negroes. 
Chief Justice White and Justices Holmes, Lamar and McReynolds concur in result. 

McCALL v. CALIFORNIA, 136 U. S., 104; 34 Law Ed., 391 (1890). 

Reverses state court and declares void as to interstate commerce municipal regu- 
lation of San Francisco. 
Chief Justice Fuller and Justices Gray and Brewer dissent. 

McFARLAND v. AMERICAN SUGAR REF. CO., 241 U. S., 79; 60 Law Ed., 899 
(1916). 
Statute of Louisiana declared unconstitutional. 

McGAHEY v. VIRGINIA, 135 U.S., 662; 34 Law Ed., 304 (1890). 

Invalidates act of Virginia, limiting time of proceedings to test genuineness of cer- 
tain coupons, as unreasonable and impairing obligation of contract. 

MEDLEY, Petitioner, 134 U. S., 160; 33 Law Ed., 835 (1890). 

Invalidates Colorado act under United States Constitution as ex post facto. 



75 

MEYER v. WELLS FARGO & CO., 223 U. S., 297; 56 Law Ed., 445 (1912) 

Invalidates in part gross revenue tax on non-resident express company by Oklahoma 
statute. 

MINNEAPOLIS v. MINNEAPOLIS ST. RY. CO., 215 U. S., 415; 54 Law Ed., 259 
(1910)." 
Declares invalid as impairing obligation of contract ordinance affecting street 
railway charge. 

MINNESOTA v. BARBER, 136 U. S., 318; 34 Law Ed., 455 (1890). 

Minnesota statute requiring inspection tax on beef imported from another state 
held void as restricting interstate commerce. 

MISSOURI PAC. RY. CO. v. NEBRASKA, 217 U. S., 194; 54 Law Ed., 727 (1910). 
Declares invalid Nebraska law touching construction of sidetracks, etc., to reach 

grain elevators. 
Justices Harlan and McKenna dissent. 

MISSOURI PAC. RY. CO. v. NEBRASKA, 164 U. S., 403; 41 Law Ed., 489 (1896). 
Statute of Nebraska declared unconstitutional permitting use of railroad lands for 
elevator purposes without its consent under certain circumstances. 

MISSOURI PAC. RY. CO. v. TUCKER, 230 U. S., 340; 57 Law Ed., 1507 (1913). 
Invalidates Kansas law fixing unusual liabilities for charging certain excessive rates. 

MOBILE & O. R. CO. ET AL. v. TENN., 153 U. S., 48.6; 38 Law Ed., 793 (1894). 
Declares Tenn. state statute invalid as impairing obligation of contract. 
Chief Justice Fuller, vdth whom concurred Justices Gray, Brewer and Shiras, 
dissent. 

MUHLKER v. NEW YORK & H. R. CO., 197 U. S., 544; 49 Law Ed., 872 (1905) 
Invalidates New York law providing for elevated structure changing street con- 
ditions. 
Justice Brown concurs in result. Justice Holmes dissents; Chief Justice Fuller and 
Justices White and Peckham concur in dissent. 

MYERS v. ANDERSON, 238 U. S., 368; 59 Law Ed., 1349 (1915). 
Invalidates Maryland statute indirectly disfranchising negroes. 

NEW YORK L. E. & W. R. CO. v. PENNSYLVANIA, 153 U. S., 628; 38 Law Ed., 
846 (1894). 
Holding invalid Pennsylvania state act as impairing obligation of contract. 

NEW YORK LIFE INS. CO. v. DODGE, 246 U. S., 357; Law Ed. 62, 772 (1918). 
Invalidates Missouri statute touching effect of nonpayment of life insurance pre- 
miums. 
Justices Brandeis, Pitney, Day and Clarke dissent. 

NORFOLK & WESTERN RY. CO. v. CONLEY, 236 U. S., 605; 59 Law Ed., 745 
(1915). 
Invalidates passenger rate fixed by West Virginia acts as applied to interstate 

passenger business. 
Mr. Justice Pitney dissents. 

NORFOLK & WESTERN RY. CO. v. SIMS, 191 U. S., 441; 48 Law Ed., 254 (1904). 
Invalidates North Carolina tax on foreign corporation selling machines in the 
state on order. 

NORFOLK & WESTERN RY. CO. v. PENNSYLVANIA, 136 U. S., 114; 34 Law 
Ed., 394 (1890). 
Declares Pennsylvania law invalid imposing license tax on agent of foreign railway 

connecting with Pennsylvania road. 
Chief Justice Fuller and Justices Gray and Brewer dissent. 



76 

NORTH DAKOTA EX REL. FLAHERTY v. HANSON, 215 U. S., 5L5; 54 Law 
Ed., 307 (1910). 
Declares invalid North Dakota act requiring receipts for payment of Federal 

Internal revenue tax to be published at holder's expense. 
Chief Justice Fuller, Justices McKenna and Holmes dissent. 

NORTHERN OHIO T. & L. CO. v. OHIO EX REL. PORTIUS, 245 U. S., 574; 62 
Law Ed., 481 (1917). 
Declares invalid revocation by county board of grant to locate, etc., electric railroad 

along state highway. 
Justices Clarke and Brandeis dissent. 

NORTHERN PAC. R. R. CO. v. NORTH DAKOTA, 236 U. S., 685; 59 Law Ed., 
735 (1915). 
Invalidates North Dakota law fixing rate for transportation of coal. 

NORTHERN P. & R. CO. v. WASHINGTON, 222 U. S., 370; 56 Law Ed., 237 (1912). 
Declares Washington law regulating hours of service on interstate railroad employees 
invalid, as conflicting with Federal regulation. 

NORWOOD v. BAKER, 172 U. S. 269; 43 Law Ed., 443 (1898). 

Invalidates municipal assessment for special benefits made by Ohio Municipal 

corporation. 
Justices Brewer, Gray and Shiras dissent. 

OWENSBORO v. CUMBERLAND T. & T. CO., 230 U. S., 58; 57 Law Ed., 1391 
(1913). 
Declares invalid attempt of municipal corporation to repeal telephone franchise 

once granted. 
Justices Day, McKenna, Hughes and Pitney dissent. 

PENNOYER ET AL. v. McCONNAUGHY, 140 U. S., 1; 35 Law Ed., 363 (1891). 
Declares Oregon statute invalid as impairing obligation of contract. 

POSTAL TELEGRAPH-CABLE CO. v. TAYLOR, 192 U. S., 64; 48 Law Ed., 342 
(1904). 
Invalidates ordinance imposing license fee on poles and wire, as invalid exercise of 

police power. 
Justices Harlan and Brewer dissent. 

POWERS v. DETROIT, G. H. & M. R. CO., 201 U. S., 543; 50 Law Ed., 860 (1906). 
Invalidates section of Michigan law levying additional taxes beyond contract 

amount. 
Justice White dissents. 

REARICK v. PENNSYLVANIA, 203 U. S., 507; 51 Law Ed., 295 (1906). 

Municipal ordinance exacting license fee declared void as interference with inter- 
state commerce. 

ROANOKE, THE, 189 U. S., 185; 47 Law Ed., 770 (1903). 

Declares invalid Washington statute creating lien on foreign vessels as interference 

with interstate commerce. 
Justice Harlan concurs. 

ROSENBERG v. PACIFIC EXPRESS CO., 241 U. S., 48; 60 Law Ed., 880 (1916). 
State statute of Texas declared unconstitutional. 

ROSSI v. PENNSYLVANIA, 238 U. S., 62; 59 Law Ed., 1201 (1915). 

Limiting application of state laws affecting delivery of intoxicating liquors. 

RUSSELL v. SEBASTIAN, 233 U. S., 195; 58 Law Ed., 912 (1913). 

Invalidates constitutional amendment and municipal ordinances thereunder as to 
prior contract. 



77 

ST. CLAIR COUNTY>. INTERSTATE S. & C. T. CO., 192 U. S., 454; 48 Law Ed., 
518 (1904). 
Invalidates Illinois law imposing license tax on ferry across the Mississippi. 

ST. LOUIS & S. W. R. CO. v. ARKANSAS, 217 U. S., 136; Law Ed. 54, 698 (1910). 
Declares invalid Arkansas statute touching supply of cars. 
Chief Justice Fuller dissents. 

ST. LOUIS, IRON MT. & S. RY. CO. v. WYNNE, 224 U. S., 354; Law Ed. 56, 799 
(1912). 
Invalidates Arkansas law imposing double liability and attorney's fee on railroad 
company for refusing prompt payment for killing stock. 

SAULTSTE. MARIE v. INTERNATIONAL TRANSIT CO., 234 U. S., 333; 58 Law 
Ed., 1337 (1914). 
Invalidates action of municipality under state authority requiring license on ferry 
to Canada. 

SAVINGS BANK v. DES MOINES, 205 U. S., 303; 51 Law Ed., 901 (1907). 

Iowa state law which in effect requires taxing of national securities declared 

invalid. 
Chief Justice Fuller and Justices Harlan and Peckham dissent. 

SCHOLLENBERGER v, PA., 171 U. S., 1; 43 Law Ed., 49 (1898). 

Declares invalid Pa. state statute as interfering with interstate commerce. 
Justice Gray, with whom concurs Justice Harlan, dissents. 

SCOTT v. DONALD, 165 U. S., 58; 41 Law Ed., 632 (1897). 

Declares act of South Carolina affecting importation of liquor as unequal and 

unconstitutional arid void as hindrance to interstate commerce. 
Justice Brown dissents. 

SEABOARD AIRLINE RY. CO. v. BLACKWELL, 244 U. S., 310; 61 Law Ed., 1160 
(1917). 
Invalidates law of Georgia touching speed of trains approaching public crossings 
Chief Justice White, Justices Pitney and Brandeis dissent. 

SHAPLEIGH v. SAN ANGELO, 167 U. S., 646; 42 Law Ed., 311 (1897). 

Declares unconstitutional act of Texas as interpreted by its Supreme Court requir- 
ing new vote for assumption of old debt by recreated municipality. 

SIMPSON v. SHEPARD, 230 U. S., 352; 57 Law Ed., 1511 (1913). 

Declares invalid attempt of state of Minnesota to fix interstate rates at too low a 

figure for reasonable return on entire business. 
Justice McKenna concurs in result. 

SIOUX REMEDY CO. v. COPE, 235 U. S., 197; 59 Law Ed., 193 (1914). 

Invalidates South Dakota law affecting interstate business of foreign corporation. 

SMITH v : TEXAS, 233 U. S., 629; Law Ed. 58, 1129 (1914). 

Invalidates Texas law as affecting employment of conductor who has not served 

two years as freight conductor or brakeman. 
Justice Holmes dissents. 

SMYTH v. AMES, 169 U. S., 466; 42 Law Ed., 819 (1898). 

Declares Nebraska state statute fixing rates unconstitutional as taking property 
without just compensation. 

SOUTH COVINGTON & CIN. ST. RY. CO. v. COVINGTON, 235 U.S., 537; 59 Law 
Ed., 350 (1915). 
Invalidates municipal regulation of interstate commerce of street railway company. 



78 

SOUTHERN PACIFIC COMPANY v. CITY OF PORTLAND, 227 U. S., 559; 57 Law 
Ed., 642 (1913). 
Declares invalidity of municipal ordinance prohibiting hauling of freight cars on 
railway tracks as invalid exercise of right of regulation and defeating contract 
rights. 
Justices Hughes and McKenna concur in result. 

SOUTHERN R. R. CO. v. GREENE, 216 U. SI, 400; 54 Law Ed., 536 (1901). 

Alabama law imposing additional franchise tax on foreign corporation declared 

invalid as denying equal protection of laws. 
Chief Justice Fuller and Justices McKenna and Holmes dissent. 

SOUTHERN R. CO. v. REID, 222 U. S., 424; 56 Law Ed., 257 (1912). 

Declares invalid North Carolina law fixing rates as conflicting with Federal regu- 
lation. 

SOUTHWESTERN T. & T. CO. v. DANAHER, 238 U. S., 484; 59 Law Ed., 1419 
(1915). 
Declares manner of enforcement of Arkansas act unconstitutional. 

STEARNS v. MINNESOTA, 179 U. S., 223; 45 Law Ed., 162 (1900). 

Invalidates state legislation impairing obligation of contract by taxation. 
Justice Brown concurs separately as do, separately, Justices White, Harlan, Gray 
and McKenna. 

STOCKARD v. MORGAN, 185 U. S., 27; 46 Law Ed., 785 (1902). 

Declares invalid Tennessee statute imposing a tax as interference with interstate 
commerce. 

THOMPSON v. UTAH, 170 U. S., 343; 42 Law Ed., 1061 (1898). 

Declares unconstitutional so much of statute of Utah as takes away common law 
jury right for offenses when a territory. 

TRUAX v. RAICH, 239 U. S., 33; 60 Law Ed., 131 (1915). 

Declares act of Arizona unconstitutional as denying equal protection of the laws. 
Justice McReynolds dissents. 

UNION REFRIGERATOR TRANSIT CO. v. KENTUCKY, 199 U. S., 195; 50 Law. 
Ed., 151 (1905). 
Invalidates Kentucky statute including for taxation tangible personal property 

permanently located in other states. 
Justice White concurs in result; Justice Holmes and Chief Justice dissent in part 

UNITED STATES v. REYNOLDS, 235 U. S., 133; 59 Law Ed., 162 (1914). 
Invalidates Alabama law permitting peonage. 
Justice Holmes concurs separately. 

VICKSBURG v. VICKSBURG W. W. CO., 202 U. S., 452; 50 Law Ed., 1102 (1906). 
Denies right of municipality by ordinance to erect water works after having given 

an exclusive right to private individual. 
Justice Harlan dissents. 

VOIGHT ET AL. v. WRIGHT, 141" U. S., 67; 35 Law Ed., 638 (1891). 

Invalidates statute of Virginia covering inspection of flour imported from other 
states. 

WALLA WALLA CITY v. WALLA WALLA WATER CO., 172 U. S., 1; 43 Law Ed., 
341 (1898). 
Declares invalid city ordinance as impairing obligation of contract. 

WEST v. KANSAS N. G. CO., 221 U. S., 229; 55 Law Ed., 716 (1911). 

Invalidates Oklahoma law prohibiting construction of pipe lines except by domestic 

corporation, etc. 
Justices Holmes, Lurton and Hughes dissent. 



79 

WESTERN OIL REF. CO. v. LIPSCOMB, 244 U.S., 346; 61 Law Ed., 1181 (1917). 
Declares invalid privilege tax on shipments in state contracted for by traveling 

salesman. 
Chief Justice White dissents. 

WESTERN UNION TEL. CO. v. ALABAMA, 132 U. S., 472; 33 Law Ed., 409 (1889). 
Declares invalid Alabama law taxing telegraph company receipts on messages 
from or to other states. 

WESTERN UNION TEL. CO. v. KANSAS, 216 U. S., 1; 54 Law Ed., 355 (1910). 

Declares invalid charge against foreign telegraph company of percentage of its 

authorized capital stock for use of school funds. 
Justice White concurs separately and Justice Holmes, Chief Justice Fuller and 

Justice McKenna dissent. 

WILLCOX v. CONSOLIDATED GAS CO., 212 U. S., 19; 53 Law Ed., 382 (1909). 
Declares invalid provisions of New York law fixing gas rates in New York City 
Covering gas pressure in mains, etc. 

WILLIAMS 9. CITY OF TALLADEGA, 226 U. S., 404; 57 Law Ed., 275 (1912). 

Declares invalid municipal license under state authority of Georgia on local busi- 
ness by telegraph company availing itself of Federal law. 

EX PARTE YOUNG, 209 U. S., 123; 52 Law Ed., 715 (1908). 

Declares statute of Minnesota unconstitutional because exacting excessive penalties 

for resorting to court to test its validity. 
Justice Harlan dissents. 



APPENDIX B 



The following is presented as an enumeration derived from the digests down to the 
year 1916 of cases in the courts of the several states in which acts of the legislatures 
have been declared unconstitutional. This table can not be accepted as absolutely 
correct, but as presenting a very close approximation to the real situation. To attain 
perfection would require uninterrupted labor of many months and might not then be 
achieved. The difference in the ultimate result from that afforded by the present table, 
itself the product of many days' work, would not be of sufficient importance to justify 
the effort. 

Laws Held Unconstitutional, 1658 to 1916 

Alabama, 104; Arizona, 6; Arkansas, 78; California, 165; Colorado, 65; Connec- 
ticut, 48; Delaware, 18; District of Columbia, 13; Florida, 30; Georgia, 53; Idaho, 30; 
Illinois, 196; Indiana, 136; Iowa, 77; Kansas, 68; Kentucky, 149; Louisiana, 98; Maine, 
38; Maryland, 97; Massachusetts, 82; Michigan, 126; Minnesota, 80; Mississippi, 69; 
Missouri, 169; Montana, 21; Nebraska, 67; Nevada, 15; New Hampshire, 51; New Jer- 
sey, 102; New Mexico, 3; New York, 384; North Carolina, 81; North Dakota, 30; Ohio, 
132; Oregon, 37; Pennsylvania, 177; Rhode Island, 22; South Carolina, 65; South 
Dakota, 27; Tennessee, 123; Texas, 134; Utah, 22; Vermont, 55; Virginia, 50; Wash- 
ington, 50; West Virginia, 32; Wisconsin, 105; Wyoming, 9. Total, 3,789. 



80 

APPENDIX C 



Summary of Laws Held Void by State and Federal Courts According to the List Pre- 
pared by the New York Library, 1903-1908 



Lack of clear title - 

Denial of equal protection of laws 

Class and special legislation-... 

Lack of power and refusal to follow Con- 
stitution... 

Deprival of property without due process 
of law. 

Interference with judicial powers 

Lack of uniformity in taxation 

Impairing obligation of contract. 

Interference with interstate commerce.. 

Not valid exercise of police power. 

Relating to elections 

Denial of freedom of contract 

Attempt to confer legislative powers 

Taking property for private purposes. 

Exemption from taxation 

Taxation for private purposes 

Interference with federal power. 

Interference with personal liberty.. 

Ex post facto laws. 



Total. 



1903' 



1904. 



1905. 



1906. 



13 

6 

19 



51 57 53 98 94 47 



1907. 



1908. 



10 
6 



Tctal. 

55 
36 
53 

48 

49 

32 

23 

21 

19 

13 

9 

8 

8 

8 

5 

4 

4 

3 

2 

400 



L,B ^RY OF CONGRESS 



022 021 600 7 



/ 



